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The Adyar" Library Series No. 27 



(Dewan Bahadur K. Krishnaswami Row Lectures, 
University of Madras) 



Honorary Professor of Economics, 
Benares Hindu University 









IN the scheme of work outlined for the Library is the 
publication of a number of unpublished Dharmasfastra 
works, whose importance and rarity justify their in- 
clusion in the Adyar Library Series. An important 
Digest of Hindu Law of the so-called " South India 
School," the Vyavah&ranirnaya, which is older than 
the famous Parff&ara-Mndhaviya, and probably older 
than the Smfticandrikn of Devanna Bhatta, is ready 
for release as one of our Series. Another work which 
is on the anvil is the Kestava-Vaijaydntl the famous 
bhftsya on the ancient Vi$nusmrtt. Both these are 
being edited by Rao Bahadur, Professor K. V. Ranga- 
swami Aiyangar, Vidyavacaspati, Dharmyarths'astra- 
ratnakara, whose pioneer works on Ancient Indian 
Polity and Economic Thought are well-known to 
students of Hindu social institutions. He has now 
completed for another well-known series a reconstruc- 
tion of the long-lost law-book of Brhaspati, after many 
years of strenuous investigation. We are promised in the 
same series under his editorship, the first five volumes 
of Laksmldhara's Kftya-Kalpataru, the oldest extant 
digest of Dharmasfastra and they are to be followed 
by the remaining nine volumes of this great dharma- 
nibandha. These undertakings are the result of studies 


furnish to the reader adequate material for judging 
of the validity of the positions taken by the lecturer, 
and are embodied in a series of very condensed essays 
or articles, amounting to more than a hundred-and- 
eighty, which are modestly designated as ' Notes.' Even 
a cursory perusal of their titles in the list of contents 
will disclose their importance as well as their range, 
variety and interest. The ' Notes ' form as important 
a part of the book as the text. Attention may be 
drawn also to the classified index, which may be useful 
to students. It is the work of a member of our staff, 
Mr. A. N. Krishna Aiyangar, M.A., L.T., Joint Editor 
of our Bulletin. 

The scheme of publication which the Adyar 
Library has laid down provides for the publication of 
lectures like those now introduced. Our obligation to 
Professor Rangaswami Aiyangar, who has so freely 
been collaborating with us, is all the greater since he 
has given the Adyar Library all rights both in the 
lectures on Rnjadharma now published and in other 
works which he is editing for the Library. To meet 
the convenience of readers of Sanskrit unfamiliar with 
N5gari script, he has given at considerable labour the 
many Sanskrit texts he has cited in the ' Notes ' in 
Roman. It is hoped that this will enable a larger 
body of readers to examine the citations than would 
be possible if Nagarl had been employed for their 

The Adyar Library G. SRINIVASA MURTI, 

1st July, 1941 Honorary Director 


IN the renaissance of Indian studies, which is a feature 
of our day, a branch which has not come to its own 
is Dharmasffistra. Even among its special students 
divergent views as to its character, scope, content, 
source, authority and affiliations are not uncommon. 
This is due neither to lack of material nor to lack of 
intensive study. Though only a small fraction of the 
vast literature of DharmasTastra has been printed and 
a still smaller fraction is available in translations, 
virtually all the great commentaries and digests that 
have survived eight centuries of alien and frequently 
hostile rule, are now available in one or other of our 
great manuscript collections. 

Dharmasfastra was a living subject down to the 
threshold of the nineteenth century. It was assiduously 
cultivated at the great centres of Hindu learning and 
digests were written as late as the accession of Queen 
Victoria. For a generation or two afterwards, proximate 
utility drew lawyers and judges to the intensive study of 
one section of it, viz. vyavafalra. A mild interest has 
since then been evinced by students of ritual in the 
other two sections, viz., acura and pr&yasccitta. 


Legalist enthusiasm for Dharmasrnstra rapidly waned 
with the growth of case-law and the ever-widening rift 
between the traditional Hindu law and the judge-made 
law of the British Indian courts. If and when the 
proposal under consideration to codify Hindu Law 
(on the basis obviously of judicial decisions and re- 
formist advocacy) becomes fait accompli, the little 
interest which survives among professional n\pn will 
vanish completely. 

The contingency need not, however, cause misgiv- 
ing. Vyavakara doctrines have suffered greatly from 
specious reasoning and distortion in the interest of 
litigants and from their pursuit in the twilight of half- 
knowledge. If DharmasTastra continues to hold an 
attraction, it will be chiefly to students of history, who 
will turn to it for the light it will throw on the 
institutions and ideals, the life and thought of an 
age remote from their own. It will also count as a 
disciplinary study in the Universities. Its liability to 
distortion will not disappear altogether. To read the 
present into the past is a foible to which historians are 
liable. The political use of history consists in the past 
forming an arsenal from which weapons for present 
strife may be drawn. History is not immune from 
interested falsification or from erroneous conclusions 
due to religious or political bias. These risks will have 
to be faced by Dharma&astra also. But, as in the 
case of history, the margin of error can be reduced by 
the diffusion of high ideals of truth and accuracy and, 
as in the physical sciences which use laboratory methods 


of investigation, by the provision of safeguards or 
* controls.' 

An aim of the lectures now printed was to evoke 
and x stimulate interest in a branch of study which was 
regarded for ages as of paramount importance for the 
upkeep of the social order. Other aims were to illus- 
trate its use to the student of Indian history and 
sociology, to define its position among kindred studies, 
and to vindicate the value of the traditional method of 
approach to it, the neglect of which has been the fertile 
source of numerous dubious conclusions now in circula- 
tion. An attempt was also made to demonstrate by 
examples the importance of securing, as a condition 
precedent to its study, a correct perception of the 
philosophic background of Hindu life and thought 
Sir Henry Maine, whose masterly studies of Roman and 
Celtic law, vindicated the value of the historic method, 
made many plausible and invalid generalisations when 
he dealt with Hindu jurisprudence. His errors sprang 
not from any defect of the historic method but from 
his conspicuous drift from that method in the case of 
Hindu Law, when he read into its authors motives and 
purposes as well as beliefs of his day, and showed in- 
ability to avoid bias due to a sense of racial and reli- 
gious superiority. It is natural but regrettable that the 
authority justly attaching to his name is still securing 
the currency of many erratic views for which justifi- 
cation will be difficult to find. It is still more a matter 
for regret that with far less excuse than Maine, who 
wrote from a cursory perusal of English translations of 


a few sm?Us and digests and without access in the 
originals to the major digests, commentaries andsittf&s,. 
modern writers, who enjoy these advantages, repeat or 
add to Maine's erroneous statements. Few modern 
books on Hindu ethics, for instance, are free, whether 
composed in a spirit of apology or appreciation or of 
hostile criticism, from statements which wider know- 
ledge of Dharmasfostra and its study, not apa# from 
but side by side with cognate subjects, might have 
prevented. In the Hindu view of life, aims, ideals and 
activities were not divided up and considered as in- 
dependent of one another. There was no distinction 
between things secular and things religious : the dis- 
tinction would have been unintelligible to the ancient 
Hindu. Society was viewed as indivisible, except for 
distribution of duties and obligations. On the equi- 
poise of duties duly discharged, whether of indivi- 
duals, classes or functionaries, was held to depend the 
harmony not only of a particular state or community 
but of the entire universe. Life was a continuum, not 
interrupted by death, and so were deed and thought. 
With such beliefs, to look into only one specialised 
subject like Arthasf&stra or Dharmasfastra, for a final 
interpretation of the meaning of any rule of life or 
institution, was to ask to be misled. This is why error 
pursues the heels of one who would study a section 
of Dharmasfnstra (e.g., vyavahttra) to the exclusion of 
the others, or study Dharmasrastra and Arthasrastra 
apart and as if they were not cognate and inter- 
dependant. Specialisation has . its "limitations. We 


might acquire knowledge of the histology and ana- 
tomy of Hindu society, and miss all knowledge of its 
physiology and psychology. 

In earlier studies, some of which go back to 1914, 
it was my endeavour to indicate some of the devices 
which the traditional method of education and trans- 
mission of knowledge from generation to generation in 
the " Bookless ages," provided for a correct compre- 
hension of the Hindu ideals of life. The present 
lectures illustrate the uses of the traditional approach 
to the study of Dharmasfnstra and Arthasfostra, and 
the unwisdom of ignoring or rejecting, in the special 
conditions in which Indian learning was conserved, 
valuable oral tradition and its late record in books. 

The designation of lectures on some aspects of 
Dharmasr&stra as Rujadharma requires in the condi- 
tions of our day an explanation which would have been 
superfluous to the old Hindu. Today we, under the 
obsessions of political studies, regard R&jadharma as 
king-craft or polity. This meaning was not unknown 
in the past but the wider sense of the term was in 
general use. The distinction involves what may be 
regarded as a "constitutional" issue. Among personal 
and functional obligations those which lay upon the 
head of society (e.g. Raja) hinged round his duty to 
maintain each person in his duty or Dharma. The 
king's Dharma, Rujadharma, was thus the sum of 
the knowledge of all particular duties, i.e. the whole 
Dharma, Dharmastostra. The new knowledge springing 
from the Arthasrastra has been used to support views 


which reverse the relations of the ancient Hindu king 
and his society. The wider sense of the term would 
have automatically corrected the tendency were it un- 
derstood. The idea was so familiar to the old-time 
Hindu that it entered into the fabric of ordinary litera- 
ture. For instance, addressing Rama, Laksmana is 
made by Bhavabhuti to say : 

" Dharmaprakrsyatriano vv goptn Dharmaqya 
vn bhavan " 

(Mahavlracarita, V, s'l. 30) 

The king is the subject as well as the protector of 

The form of a lecture precludes the inclusion of 
citations of authority. The lectures now printed con- 
tain on every page statements which run counter to 
received opinion. During oral delivery such explana- 
tions as seemed from the nature of the audience to be 
called for were given on the spot. When the lectures 
are printed and addressed to a wider circle, it has be- 
come necessary to supply the material on which readers 
might judge for themselves of the validity of the 
reasoning or conclusions advanced in the lectures, instead 
of accepting them without examination. The need is 
met by the addition of the "Notes" at the end of the 
lectures (pp. 66-216). I have endeavoured to keep down 
their number and to condense them as far as possible 
consistently with clearness. In several 'Notes' the argu- 
ment has been developed and carried a stage further 
than in the text. For understanding the points of view of 
the lectures the 'Notes' are very necessary. It is hoped 


that they will prove of interest and of some use to 
students of Dharmasrastra. 

The lectures were composed for oral delivery 
early in 1938. The University of Madras had no 
funds for their publication. I am indebted to the 
authorities of the Adyar Library and particularly to its 
erudite Director, Vaidyaratna, Captain G. Srinivasa- 
murtu for not only taking over the publication first 
through the Bulletin of the Library and then in- 
dependently, but for the freedom given me in regard to 
the number and length of the ' Notes.' I am also 
indebted to the Joint Editor of the Brahmavtdycl, 
Mr. A. N. Krishna Aiyangar, M.A., L. T., for seeing 
the book through the press and for providing an index of 
unusual fulness and clarity. My obligation is great to 
Mr. C. Subbarayudu, the Manager of the Vasanta Press, 
for his patience in overlooking the submission of numer- 
ous proofs, necessitated by the use, for the convenience 
of readers in Europe and America, of diacritically 
marked Roman type for passages in Sanskrit, and 
for the care with which the work has been done. 

The printing of the book was begun in May 1939. 
As both Mr. Krishna Aiyangar and I became soon after 
engrossed in the task of organising an Oriental Institute 
at Tirupati and continued in the 
1940, a long interval between 
the completion of the printing h^ftfe^ome 


Rangachari Road, 
Mylapore, 5th July, 1941 



DEDICATION ....... v 

PREFATORY NOTE . . . . . . vii 

PREFACE . . . . . xi 

LECTURE I . . . . . .1 

LECTURE II . . . . . . .33 


1. Study of Ancient Indian Culture . . .67 

2. Rajadharma . . . . . .67 

3. The Lecturer's Works . . . . .68 

4. Use of the Kautillya in Modern Politics . . 68 

5. Dharmas'astra as Priestly Twaddle . . .68 

6. Small Content of Law and Polity in Dharma- 

s'astra ....... 70 

7. Halhed'sCode 71 

8. Colebrooke's Digest . . . . .71 

9. Early English Translations of Dharmas'astra 

and Works on Hindu Law . . .72 

10. Jimutavahana's Interest in Non-Vyavahara . . 73 

11. Madhavacarya's Kalaviveka or Kalaniryaya . . 73 

12. Mixture of Spiritual and Secular Punishments 

in the Hindu Criminal Code . . . .74 

13. Brahmana Immunities . . . .75 

14. Alleged Secular Nature of Arthasftstra . . 76 



15. Toleration of Heresy and Heterodoxy . . .77 

16. Differentiation between Secular and Religious 

Law 7& 

17. Divinity of Punishment or Danda . . .80 

18. Vedic Basis of Hindu Law . . . -80 

19. Doctrine of Option (Vikalpa) . . . .81 

20. Conflicts of Law not Real . . . .82 

21. Schools of Arthas'astra -83- 

22. Application of Mimamsa to Dharmas'astra and 

Arthas'astra ...... 84 

23. Arthas'astra core of Smftis . . .84 

24. Brahmanical Reaction from the First Century 

. A.D. favours Dharmas'astra . . . .84 

25. Kamandaka's Nltisara . . . . .85 

26. Sutra form of Composition . . . .86 

27. Formal Public Recitations of Sutras . . .86 

28. Lost Swrtf-bhasyas . . . . .86 

29. Distance of time between Smrtis and Commen- 

taries ....... 87 

30. Kautilya's own Bha$ya on the Arthas'astra . . 87 

31. Madhava's Treatment of Vyavahara and Raja- 

dbarma ...... 87 

32. Recent Bhasyas and Nibhandhas . . .88 

33. Non-inclusion of YaJHavalkyasmrti in " The 

Sacred books of the East " ... 88 

34. Attitude of Indian Courts to Dharmas'astra . . 89 

35. Colebrooke's Study of Mimamsa . . .89 

36. Allegation of Priestly influence on Hindu Law . 90 

37. Sahara's Modernity in Criticism . . .90 

38. Kaufilya and his Guru . . . .91 

39. Criticised views on the nature of Dharmas'astra . 91 

40. Jayaswal's views of the Difference between 

Arthatfastra, Dharmas'astra and Rajanlti . . 92 

41* The way of the Mahajana the path of Dharma . 93 



42. Connotation of.Dharma . . .95 

43. Classifications of Dharma . . . .94 

44. Dharma comprehends all knowledge . . .94 

45. The Vidyasthanas or Dharmasthanas . . .95 

46. The Krtya-Kalapataru . . . .95 

47. Omission of Rajadharma and Vyavahara in 

Digests . . . . . .96 

48. Sections omitted in the Ratnakara* by Cafl- 

desVara . . . . . .96 

49. The Hypotheses of Mimamsa . . . .96 

50. Consideration of apparent conflicts of Author- 

ities ....... 96 

51. Alleged rule of Kaltka-Puraqa on the adoption 

of a boy who has had Samskaras . . 98 

52. Judges and Assessors to be trained lawyers . . 98 

53. Parisad 99 

54. Vastness of Dharmas'astra Literature . . .100 

55. Dharmas'astra activity in the middle of Civil 

Troubles . . . . . .101 

56. Idea of union of interest between King and Sub- 

ject 101 

57. King and Danda divinely created . . .102 

58. Horror of Anarchy ..... 102 

59. Influence of good Government on the Seasons . . 102" 

60. Raja Kalasya Karanam . . . .102 

61. Ramarajya ...... 105 

62. Karta-vlryarjuna . , . . .105 

63. Rama as the Restorer of the Golden Age in Treta-Yuga 106 

64. Expulsion or execution of an evil Ruler . .106 

65. Taxes are the King's Wages .... 107 

66. King's freedom ends with Coronation . . .107 

67. Vinu resides in Subject as in King . . . 10$ 

68. The King's duty to know Dharma . . .108 

69. Unhappinejss is due to error in Government . .108 



70. Adjustment of Dharma to capacity , . .109 

71. Adjustment of law to changing society . . .109 

72. Absence of the influence of legal fictions in Hindu 

Dharma . . . . . .110 

73. Conservatism not characteristic of earlier, and liberal 

views of later Smartas . . . .111 

74. Schools of Dharmasfastra . . . .112 

75. Kautilya and Manu on the authority of Nyaya . 113 

76. Customary law systematised, recorded and applied . 114 

77. Recommendation of faith in God in preference to sacri- 

fices, etc. . . . . . .115 

78. Gifts (Dana) preferred . . . . .115 

79. Authoritativeness of a Smrti due to its own merit . 116 

80. Smrtis endless; Recognition of a modern smrti 

(Medhatithi) . . . . , .116 

81. The Doctrine of Representation (Pratinidhitvam) . 118 

82. Condemnation of S'udra mendicancy and celibacy . 122 

83. Magnification of the Brahmana . . . 122 

84. Performance of Asfvameda by Kings of dubious caste . 122 

85. Samudragupta's relation to an outcaste clan . .123 

86. Heliodorus the Vaisnava Greek . . .124 

87. The Huns as worshippers of Visrju . . .124 

88. The effects of the spread of Mimamsa on Buddhism . 125 

89. S'ankara's influence in the Disappearance of Buddhism 127 

90. Devala's claim to supersede other smrtis . .128 

91. Digests under Royal authorship or patronage . .129 

92. Dharmas'astra in the Musalman period . , .129 

93. Dvaita-nirqaya . . . . .130 

94. The substitutes for the Pari$ad in Dharma- vyavastha 131 
95. Medhatithi's repudiation of the King's power to make 

a law in transgression of Dharma . . .131 

96. King's alleged power to make laws, of his own authority 132 

97. Power of the King to change law or usage. The 

alleged case, of As'oka . . . .135 



98. Alleged change by the Mauryas in the law of theft . 135 

99. Respite from sentence for three days in the case of 

prisoners sentenced to death . . . .136 

100. Royal pardon ...... 137 

101. Prohibition of Vedic sacrifices .... 138 

102. Brunahatya . . . . . .139 

103. As'oka's DHamma viewed as Brahmanical . .139 

104. IJharmavijaya ...... 140 

105. Dharma- Amatya same as Dharm&dhikari . . 143 

106. Title of Dharma Maha-Raja in the Pallava Dynasties . 143 

107. Kadamba title of Dharma- Maharaja . . .144 

108. Gangas as Dharma-Maharajas . . . .145 

109. Title of Dharma-Maharaja in Campa . . .145 

110. Cola claim to follow Manu's lead . . . 145 

111. Kahdasa on Manu's ideal . . . .146 

112. Evils of Anarchy (Arajata) . . . .146 

113. Aspects of Barbarian rule in India . . .147 

114. Removing the taint of Kali (Kali-rajah) . . 148 

115. Education of Princes . . . . .148 

116. Increasing Dependence on Customary Law . . 148 

117. Equal validity of all texts . . . .150 

118. Anonymous texts . . . . .152 

119. Justice and good conscience .... 152 

120. Insight or Intuition (Yuktt) .... 153 

121. Acceptance of the usages of Pratiloma castes . .154 

122. The usages of the good S'udra .... 155 

123. Supersession of S'istacara by Sadhunam-Acara . 156 

124. Animus against the learned S'udra . . .158 

125. Limits of Aryavarta ..... 159 

126. Apad-Dharma . . . . . .161 

127. Voyages and visits to prohibited Areas . . 162 

128. Relaxations of Yuga-Dharma .... 163 

129. Relaxation of duties for S'udras and women . .164 

130. Upanayana for Women .... 165 



131. Reduction of stringency of rules of Taint . .166 

132. Relaxation of rule for Age, Infirmity etc. . . 167 

133. Struggles of Bhakti-Marga Adherents with Smartas . 168 

134. Emancipation of individual earnings from family con- 

trol and joint-ownership , . . .168 

135. Reduction in the number of valid marriages . .169 

136. Adoption . . . . . .170 

137. Status of Women (General) , . . e . 171 

138. Workhouses for destitute women . , .171 

139. Wife shares in Husband's Punya . . .171 

140. Brhaspati on the rights of the Wife . . .172 

141. Right of unmarried daughter to expenses of marriage . 173 

142. Marriage an obligation to woman . . .174 

143. Alleged Buddhist influences in securing Sex equality . 175 

144. Indissolubility of marriage . , . .175 

145. Condemnation of prolonged celibacy . . .176 

146. Praise of Grhasthas'rama . . . .178, 

147. The widow's power of Alienation . . .178 

148. Divorce open to Non-Brahmanas . . .180 

149. Kalivarjya . . . . . .181 

150. Candragupta's marriage to his brother's widow . 183 

151. Gradual disappearance of Niyoga . . .184 

152. Prohibition of hypergamous unions . . .185 

153. Growth of belief in magical practices . . .185 

154. Sati or Sahamarana or Anvarohana . . .186 
J55. Treatment of unchaste and abducted or outraged 

women . . . , . 189 

156. Rehabilitation of abducted or outraged women * .192 

157. Al-Biruni on Hindu treatment of fallen women and 

returned converts . . . .193 

158. Rehabilitation of the converted Hindu . . .194 

159. Treatment of Vratya ; S'ivaji's expiation and coronation 195 

160. Vratyastoma . . , . . .196 

161. Asfoamedha by Kings of dubious Katriya linkage . 197 



162. Nibandhas on Dharmas'astra by Kings . . . 199 

163. Hemadri's Caturvargacintamani . . . 199 

164. Jayasimhakalpadruma . . . .199 

165. Small content of politics and law in Nibandhas written 

by command ...... 200 

166. The character of Rajaniti in Nibandha literature . 200 

167. Kautilya's Arthas'astra . . . .201 

168. Bhoja's Yuktikalpataru . . . .201 

169. Manasollasa of SomesVara Calukya . . .201 

170. Kamandaka, Somadeva-Suri and Hemacandra . . 202 

171. Rajadharma works by Court Pandits . . . 202 

172. Laksmidhara and the Krtyakalpataru . . . 203 

173. Candes'vara ...... 204 

174. Nltimayukha . . . . . .204 

175. Non-Ksatriya coronation .... 205 

176. Killing a Brahman in self-defence . . . 205 

177. Kuta-Yuddha . . . . . .208 

178. Anantadeva's doctrines .... 208 

179. MitratrnVra's views ..... 208 

180. Candesvara and Laksmidara . . . .210 

181. King's propitiation of Unseen Powers . .211 

182. Caste of Candesvara's master the Brahmaija 

as King 211 

183. Recognition of the King de facto . . .213 

184. The State's obligations to the Poor . . .213 

185. Burke's definition of Society . . . .213 

186. Divinity of the People (Prajah) , . .214 

187. Composition of the Rajanlti-ratnakara by Royal 

command ...... 215 

188. Principle of substitution (Prattnidhitvam) . .215 

189. A woman's independent right to perform a sacri- 

fice . . . . . .216 


Page Line 

69 4 Read contempt for cqmtempt 

104 33 initiated by the initiated the 

107 19 Catus's'atitlka Catusrsratlkaka 

113 13 Nydyastatra Nyayastatra 

152 16 But Bur 

163 25 S'loka Apastamba S'loka Apatamba 

165 10 Sadyovadhitk ,, Sadhyovadhilh 

14 Upanayana Upananayana 

174 16 Taittiriya Taittriya 

196 9 Ghosh Ghose 

200 31 Laksmldhara ,, Laksmidharma 




A FEW months ago I received an invitation from the Syndicate 
of the University of Madras inviting me to give the initial 
lectures on a foundation bearing the name of the late Dewan 
Bahadur K. Krishnaswami Row. The lectures were to be 
based on personal investigations, and to bear on ancient 
Indian culture. My hands were then quite full with work. 
The distance between Kas'I and Madras, and the difficulty 
of getting away from the University, in which it is now my 
privilege to serve, in a period full of work, tended to add to 
my reluctance. But it was overcome on three considerations. 
The desire of one's alma mater is, in the Hindu sense, alan- 
ghantya not to be set aside ; the gentleman, whose name was 
borne by the lectureship was one for whom I had come to 
entertain affection and veneration ; and the foundation seemed 
to be the first in the University, definitely marked for the 
advancement of a knowledge of ancient Indian culture, a sub* 
ject which had yet to come to its own in Indian Universities. 
At present there is only one university in India that at Benares 
in which it is possible for a student to take a degree after 
a full course in this important branch. When teaching and 
1 Pclivered on the 4th and 5th March, 


research were accepted some years ago as primary obligations 
by the transformed provincial universities of India, a provision 
was made for the study of Indian history and archaeology in a 
few of them. In Madras, where even the retention of the 
study of the history of the mother-country as one of several 
subjects forming an optional group, in the degree course, 
was secured only after long struggles, the first chair to be 
instituted was that of Indian History and Arch ecology, 
now limited by a convention to South India. Valuable 
additions have been made by instructors and research pupils 
to many branches of Indian history, political and cultural. 
But they have been due to the wide extension given by 
teachers to the scope of their duties. For instance, some 
recent additions to the literature of Indian polity and social 
structure have been made in the University of Bombay in the 
School of Sociology. With the exception of my colleague in 
Benares * who presides with distinction over our department 
of Ancient Indian History and Culture, only one other 
university professor in India the Carmichael Professor in 
Calcutta University derives his designation from this branch. 
But, in Calcutta there is no provision for the group in the 
ordinary and honours courses leading to the B.A. degree, 
though it can be offered by a candidate for the M.A. degree. 
In the University of Bombay a candidate can indeed offer it in 
the M.A. examination, but the provision is inf ructuous as neither 
the University nor the constituent Colleges offer any help 
to students in securing the antecedent knowledge, or provide 
post-graduate teaching in it. In the Benares Hindu University 
alone has the vision of its founders and supporters made, from 
its beginning, provision in all the degree courses for the teach- 
ing of ancient Indian history including the history of Indian 

1 Pr, A, S. Altekar, M.A., LL.B., D.Litt. 

literature, art, religion, and social and political institutions. 
The involuntary self-denial of so many Universities of India 
in this respect has not contributed to a correct perception 
of many present-day problems, which like most questions of 
the day, have their roots in the past. It is the feeling that 
it would not be right to refuse co-operation in any effort to 
revive the study of this important branch of study that 
has been the most powerful force impelling me to accept 
the invkation, in response to which it is my privilege to 
address today an audience in my old University. I trust that 
it -will not be regarded as presumptuous, or as an abuse of 
hospitality, if I venture to express the hope that in the many 
admirable developments which are now taking place in a 
University, which can claim to be the mother of four other 
universities, provision will be made, hereafter atleast, for the 
adequate and continuous study of Indian culture in every stage 
of the courses of study leading to the M. A. degree. 

It is now some years since Mr. Krishnaswami Row 
passed away. 1 His work was done in fields which do not 
come much into public view. His career was remarkable. Borrt 
in 1845, he turned to the study of English after a course 
of vernacular education, and passed the Matriculation exa- 
mination in 1864 from the Presidency College. He had not 
the advantage of College education. But, when he had 
attained eminence, he was nominated a member of the Univer- 
sity Senate and held the position for many years. He began 
his long official career as a clerk in the district court of an 
out-station. Without academic training in law, he rose to the 
position of a subordinate judge in Madras and of the chief 
judge in Travancore, and won a name as a very sound lawyer 

1 February, 1923. 


and judge. After holding the highest judicial office in 
Travanoore for over fifteen years, he was placed at the head of 
its administration by the Maharaja, a shrewd judge of men, 
devoted to the interests of his subjects. He held the office 
of Dewan with distinction for over the full term of five years. 
After his retirement in 1904, and till almost the last day 
of his life he took part in the chief public movements of 
the province. He was thorough in whatever he did. The 
reputation for efficiency, acuteness, balance and integrity, 
which he made even when he stood on the lower rungs of the 
official ladder, he kept through out a long life. He was 
firmly rooted in a belief in the verities of his ancestral religion 
and dharma, and was inflexible in his adherence to them. To 
know him was to respect him. The commemoration of his 
name in a University, in which as a student he stood outside 
the pprtals, is a fitting recognition of a life devoted to culture 
and service. It is an honour to be brought into association 
with anything which bears his name. 

** Indian culture," even when limited by the adjective 
M ancient," is a term of Atlantean extension. The wealth of 
themes in so wide a range is an embarrassment to one who 
has to make an initial choice, and perhaps to start a tradition. 
The selection of " R&jadharma" in the wide sense in which 
it is accepted in Indian tradition, is due, among other con- 
siderations to the desire to round off a series of studies, which 
were begun by me thirty years ago, and which have been 
pursued in moments of leisure snatched from daily avocation. 
In 1914 when I was honoured with an invitation like the 
present, to give the inaugural lecture on the foundation 
named after Dr. S. Subrahmanya Aiyar, the most venerated 
Indian of the day in our province, I gave the first fruits 


of studies of ancient Indian polity. The attempt partook 
the character of a pioneer enterprise, as the locus dassicus 
for all study of Indian polity, namely the Arthavdstra of 
Kautilya had been published only five years previously 
in spite of its existence having been suspected very much 
earlier by Weber and Aufrecht. I next turned to ancient 
Indian economic theory and practice and gave the results 
of my study of them in ordinary lectures delivered before 
the University, and later on under the Mafllndra Foun- 
dation in the Benares Hindu University. When my 
official harness was shed in 1934, an invitation from the 
University of Calcutta to be a Special Reader enabled 
me to follow up the implications of our wide literature of 
Artha&astra and Dharmas'astra on the social and schematic 
side. It is my purpose today to submit some reflections 
on the character, scope, progress and content of the Indian 
literature of Dharma as a prolegomenon to the study of an 
important branch of literature, which has influenced for 
centuries the life of the people of India, and whose force is 
still not spent. Many of the opinions to which expression is 
now given have been formed in the course of an examination 
of cardinal works in this branch which I am editing. 
It might be useful if it is made clear at the very beginning, 
that the aim of the lectures is not to attempt another resume 
of Indian political theory. The subject is worked out and 
there is little that one can hope to add to the data already 
collected. A stray interpretation, that may be new, will dot 
justify a mere summary of accessible information. The source 
literature of ancient Indian polity is not large, judged by whet 
has survived. Kaufilya's book towers over the rest like a 
Himalayan peak. The works of Kftmandaka, Somadeva, 
Hemacandra, Bhoja and Somervara, along with the dubious 


works bearing famous ' epic ' names like those of the opposed 
sages Brhaspati and S'ukra, and Vaisrampayana, virtually 
exhaust the number. Every inch of this small field has been 
subjected to the investigator's spade. He who aspires here- 
after to add to our knowledge must discover another Kautil- 
iya. The prospect is not hopeful. 

The subject has, however, attained remarkable popular- 
ity. The feeling which the Artha&astra created at first 
was a mixture of admiration and consternation. A ten- 
dency arose to view the old pun in the name * Kautilya, 1 
as fitly describing the author of unethical and tortuous 
policies. More thorough study of the Artha&dstra in relation 
to its environment changed the earlier view. Kautilya's 
memory was then not only vindicated ; he had a narrow escape 
from political canonisation. He has been gravely cited 
in legislative bodies, state papers and discussions of public 
policy, and his authority has been invoked not always in 
defence of " emergency finance " or the necessity of espionage. 
The Artha&dstra has been translated into several languages 
and is not regarded as needing to be bowdlerised before it can 
be prescribed for academic study. The exhumation of the old 
unsavoury reputation is now barred. It is resjudicata. The 
innocuous " Kautalya " is now welcomed as the correct form 
of his name, and it has replaced the suggestive " Kautilya ". 
The Arthasfastra has the merit of being self-contained, and of 
exhibiting the working of a master-mind, like Aristotle's. To the 
statesman and administrator, it holds a different attraction. Its 
opinions have entered into the fibre of Indian political thought 
and life. The statesman, like the physician, believes in inherited 
tolerance to certain remedies, and selects only those which the 
system will not reject. Institutions and ideas are more readily 


accepted and assimilated when they fit in with inherited 
aptitude and tradition than otherwise. The doctrine of 
the unity and continuity of history gains from the belief 
that the past survives in the present, like the immortal 
protoplasm. It offers a fresh inducement to the study of 
institutional and cultural origins. Reformers, who have to 
contend against mass inertia or opposition, are strengthened 
by the discovery of an ancient ancestry for their ideas. 
Though ^he sources of ancient Indian polity have been worked 
threadbare, they will continue to attract men of affairs so 
long as there is belief in their utility. 

This might please those who take a pride in national 
literature, but the satisfaction will not be un-alloyed. For 
a proper comprehension of our ancient life and thought 
not only Artha&astra but the bigger literature of Dharma- 
vdstra is needed. The former has been examined pretty 
thoroughly. The latter still awaits close study. The 
tendency has grown to view Dharmas'dstra as subsidiary to 
Artha&dstra, and indiscriminate use has been made of cita- 
tions from the former to support or to confirm the doctrines 
of the latter, and this has been frequently done without 
reference to context. The attitude reverses the traditional 
view of the relative position of the two. Barring the sections 
styled Rajaniti or Rdjadharma in the Epics and PurSnas, as 
well as in the/Smrtis, which are regarded of value on account 
of their political content, and the sections which deal with 
the principles and rules governing the law of persons and 
property (vyavahdra), Dharmas'dstra are rejected or ignored 
as ' priestly twaddle.' But, politics and civil law form by no 
means the whole or even the major part of Dharmas'dstra ; 
por were they regarded by old writers of acumen, possessing a 


sense of proportion and reality, as the most important. Other- 
wise, there is no meaning in writers, who display a subtlety 
and robustness of mind comparable to that of the best lawyers 
of our age or any other (e.g., Vijf&nes'vara, Laksmldhara, 
JirnQtavShana, or M&dhava or Raghunandana) spending them- 
selves on the elaboration of the parts of Dhartnas'dstra, which 
are now rejected as useless. 

This selective or differential treatment is largely the result 
of a historical accident. The early British administrators 
suddenly found their desks in the counting houses turned into 
the chairs of judges and magistrates. They had to govern 
people who were governed by personal laws, set forth in 
treatises written in languages which Europeans did not under- 
stand. The penal law, of the country, except in small islands 
of Hindu government, not submerged in the Muhammadan 
inundation, was Muhammadan and was based on the Koran 
and traditions. Warren Hastings, who had no compunction 
in enforcing a law which made forgery a capital offence, was 
outraged when he heard the sentence of a Kazi of Chittagong, 
which was in strict accord with Muhammadan Law, on certain 
persons guilty of robbery and violence. The substitution of a 
penal law from Europe for the laws of the two great com- 
munities was the first step in British administration, and the 
process was hastened by the Supreme Court. 1 Another 
step was taken when the civil law relating 1 to person and 
property (vyavahara) was taken up for translation. Halhed 
translated from a Persian version the Sanskrit digest of 
vyavahara made to the order of the Governor-General. A 
more satisfactory work was demanded by Hindu opinion, and 
it was supplied by Jagannatha's nibandha on vyavahtira, still 
Founded in 1774. 


unprinted, of which a part was translated in 1797, and is 
known as ' Colebrooke's Digest.' 

Other translations of legal works, like the vyavah&ra 
section of the Mit&ksara and the Mayukha, the D&yabhdga of 
JimGtavahana, the Ddyakratnasamgraha of S'r! K?sna, and 
two well known treatises on the law of adoption followed, 
* manuals of * Hindu Law/ for the guidance of judges and 
lawyers jgnorant of Sanskrit, were also compiled by Strange, 
Wilson and Macnaughten. Since their time, the addition 
to this branch of modern legal literature has been considera- 
ble, and has been largely due to the growth of case-law. In 
spite of increasing dependence on judicial decisions in the 
interpretation of Hindu law and usage, the desire for the 
study of treatises on vyavahara, either in Sanskrit or in 
translations, did not sensibly diminish, mainly because the 
Bench began to be strengthened by the appointment of judges 
to whom the texts and local and caste usage held an appeal. 
Recently there was a mild flutter when an Indian member 1 
of the Judicial Committee of the Privy Council made 
citations in Sanskrit in a judgment which he pronouced. 

Apart from the question of proximate utility, the selection 
of the vyavahara content of Dharmas'astra for study is also 
/iue to the assumption that it alone dealt with the " secular " 
as contrasted with the " religious " aspects of Hindu life and 
activity. Such a division of the life of the Hindu is not how- 
ever correct. Hindu thought does not recognise the dis- 
tinction. Secular and religious considerations are inextricably 
interwoven in Hindu motives and actions. This feature is 
reflected in Dharmas'astra. Legal capacity is held to rest on 
1 The Right Honorable Sir Shadilal, P. C. 


spiritual. Legal competence can be affected by ceremonial 
impurity, by the commission or the omission of particular 
religious duties, and by their performance at proper and 
improper moments. This is why the treatment of dsauca 
(impurity arising from birth or death) and kalanirnaya 
(determination of the proper time for doing prescribed things) 
occupies so large a space in Hindu legal literature. Some of 
the old rules may be argued as 'still operative. So critical 
a writer as JimOtavfihana found it necessary to wriU, besides 
his two books on inheritance (D&yabhaga) and procedure 
(Vyavah&ra-m&trk&) a much larger treatise on the " determi- 
nation of suitable time " (Kalaviveka,) and Madhavacarya also 
wrote a Kalanirnaya. In old Indian criminal law, as in 
other archaic penal law, spiritual and secular punishments 
were intermixed. An offence was treated as both a sin and 
a crime. Much misunderstanding of the supposed one-sided 
and unfair discrimination in the award of punishments on a 
caste-basis is due to a failure to visualise that every offence 
had two sentences, both of which were usually operative. 
In a sceptical age like Ours the sentence of a spiritual authority 
and the imposition of even an exacting penance or rite of 
expiation will be regarded as light in comparison with im- 
prisonment, banishment or death, while mere refusal to admit a 
person even to the right of expiation, as a penalty for the gravest 
offences, will be viewed as virtually letting an offender offi 
But it is not right to interprete the beliefs and usages of one 
age by those of another. When life was viewed as continuous, 
and as extending over both ante-natal and post-mortem time, 
and when the idea that an unexpiated offence entailed very 
grave consequences in a future existence was implicity accepted, 
the deterrent effect of a denial of the right of expiation must 
have been very powerful. Civil status and competence wa 


held to be affected adversely by unfulfilled penance or purifica- 
tion, or by some defect in an enjoined ceremony or sacrament. 
This is why the treatment of sacraments (samsk&ra), purifica- 
tion (puddhi) and expiatory rites (praya&citta) occupies such 
an important place in Dharmas' astro). The so-called ' Brahman 
immunities' should be judged in relation to this attitude* 
Kautilya, who does not hesitate, when considering the punish- 
ment of treason against the state, to over-ride the smfti rule 
that a P rah man cannot be put to death, denies even-main- 
tenance to the apostate, with an exception in favour of the 
mother alone, because apostacy placed one beyond the pale of 
redemption by purificatory rites. 

The assumption of a secular, as distinguished from a reli* 
gious division in Indian legal and political literature is responsi- 
ble for the magnification, in modern times, of Artha&dstra> 
supposed to represent the realistic and secular, as contrasted 
with Dharmas'astra reflecting the idealistic and religious ele- 
ment. The assumption of the origin of Artha&dstra, from a 
secular source is opposed to Indian tradition, which attributes 
a semi-divine, or at least an inspired source to it. It was 
counted in smrtis among the sources of law, to which judicial 
recognition was due. Judges and assessors (sabhydh) were 
to be expert in both. Arthas'dstra was included either under 
Atharva-veda, or Itihdsa, described as the fifth Veda, 
or was counted by itself as a sixth Veda. The implication 
of this picturesque statement is that it had the authority, 
which any body of doctrine claiming to be a Veda will have, 
and yet, not being of the strict Vedic corpus, it was available, 
like the Epics and Purapas and the sciences and arts (yilpa, 
kala) placed under the fifth and sixth categories, to women 
and to men of the unregenerate castes (S'tidr&ntyajdh) for 


study. This feature made it very acceptable in periods in 
which, contrary to tradition and rule, thrones were occupied by 
non-K?atriyas and by women, and a considerable section of 
the population left the Brahman fold to accept Buddhism 
and Jainism, which were outside the pale for denying the 
authority of the Veda. 

The * secular* character Arthay&stra is another as* 
sumption which can be justified neither by its content nor 
context. Arthavastra shared the same beliefs as Dhamias'astra. 
Its toleration of heresy was not new. Even before the days of 
Kautilya the Buddhist Sangha had become powerful. Under 
As'oka and his successors the heterodox position was further 
strengthened. Both As'oka and his successor Das'aratha patron- 
ised even the Ajivakas, who were atheists. Manu refers to 
associations of heretics, whose usages must be upheld for 
their own members* The heretic might be a nuisance but an 
administrator could not ignore his existence in society, es- 
pecially when he had a powerful following. This is why in 
R&janlti) beginning with Kautilya, it is laid down that a king, in 
granting audience, should give preference to heretics, magicians, 
learned Brahmans and destitute women. Heterodoxy was 
bften believed to possess a mystic power which was the source 
of its confidence. The rule is thus merely one of prudence. The 
recommendation of Kautilya that the philosophies to be includ- 
ed in royal studies should include Anvlkikl, the Samkhya, Yoga 
and Lokayata, is coupled with the injuction that they should 
be learnt only from teachers of proved orthodoxy. Yajnavalkya, 
like Manu, recognises the customs of heretics (pa?andah) t and 
the reference must be to the Buddhists. This is proof of the 
spirit of comprehension in Dharmavastra , of which another is 
the theory that it included Arthavastra. Mann's impatience 

kijAbHARkA 13 

with those who followed Artha and K3ma t is not a con- 
demnation of the subjects which dealt with them, but was 
aimed against those addicted to the excessive pursuit of wealth 
and pleasure. It is not open to infer from the existence, from 
Mauryan times, of separate courts for the trial of criminal and 
civil causes that the differentiation reflected a distinction 
between secular and religious law, for the matters were adjudi- 
cated on in both types of tribunal. Criminal jurisprudence 
was also assigned a divine origin, and Dancja (the Spirit 
of Punishment) was held to have been divinely created. 
Differences between rules of Dharmas'astra and Arthavastra 
are neither more numerous nor wider than those within each, 
according to different writers. From the postulates that all 
knowledge is ultimately based on eternal verity (Veda) and that 
apparent differences or conflict, merely indicate options, (vikalpa) 
it follows that the differences between the two sfdstras must be 
viewed as capable of explanation and reconciliation. Revealed 
knowledge must be self-consistent. There cannot therefore be 
any real conflict between Artha&astra aud Dharmas'astra. The 
hypothesis of divine origin invested both with the qualities of 
universality, consistency and permanence. It is inconsistent 
with belief in God's omniscience to presume that circum- 
stances and contingencies, which arise from age to age, or differ 
place to place, are not foreseen and provided for in literature 
which springs from Divinity. One's inability to find a unifying 
principle between apparent opposites does not mean tharsuch 
a principle does not exist and is not discoverable. Generalisa- 
tions of this type paved the way for wide interpretation, and 
for the evolution of a science compounded of equity, logic, 
psychology, grammar, and rhetoric, to which the name 
Mltn&msa, came to be given. The rules of Mlmdmsa, which 
later on underwent systematisation, are not unlike those 


evolved in western law in regard to the interpretation of 
statute law, but they follow as corollaries from the premises 
of Hindu religion. First designed for Vedic exegesis, their 
application to Dharmasastra and Artha&astra compelled their 
further elaboration and consolidation as a coherent body of 
doctrine. The two subjects to which interpretation applied 
benefited from it, particularly Dharmas'dstra ; for it survived, 
superseded and absorbed Arthavastra. The latter, which 
had enjoyed a vogue in and before the days of KautUya and 
had been cultivated in many schools, ceased to command the 
old weight after the foundation of the powerful empire of the 
Mauryas and their successors. Its derivation from S'ruti made 
it as unacceptable to the Buddhist as the Smrti. In the 
Brahmanical reaction under the S'ungas, Bharas'ivas and 
Vakatakas in North, and under the S'atavahanas and Pallavas 
in South India, an impatience of compromise was born. In 
the revision of Dharmas'dstra and of epic literature made in 
the epoch, the Artha&astra core of smrtis was strengthened so 
well that Arthayfistra ceased to have an independent existence. 
Artha&dstra works adapted themselves to the changed milieu. 
Kslmandaka's NUisdra, which claims to be based on Kautilya's 
work, adopts, like the smrti, the yloka as the medium of 
expression. It rivals Manusmrti in magnifying the power 
and position of the king. It omits the entire field of adminis- 
tration and law, leaving them to works like Manu's. It elabo- 
rates the technique of foreign relations, involving the mutual 
relations of rulers (Rdja-man^ala) and interests, forming 
groups ranging in number from sixteen to three-hundred-and- 
sixty. It stresses only those features of its original as were 
acceptable to the Brahman reaction. The difference between 
Kaufilya and Kamandaka is that between one who saw a great 
empire rise on the foundations of a number of small states, and 


of one who witnessed the daily struggles and the shifting 
alliances of a number of precarious principalities. Later works, 
like those of Somadeva and Hemacandra, reflect the steady 
political decline, of which we have evidence in history. 

The NUivakyamrta of Somadeva is more a literary experi- 
ment than an original essay on politics. He reproduced in 
pithy sentences the words of Kautilya, but not the spirit. That 
was be expected. Temperamentally, the Mauryan king- 
maker and the pacific Jain ascetic were poles apart. The 
subject-matter of Somadeva's little book is more closely related 
to KSmandaka's work than to Kamandaka's famous original. 
Hemacandra's Lagu-arhan-nlti is more an imitation of the 
popular summary of smrti rules (e.g. the Smrtisarigraha) than 
a contribution to Arthasrastra. Civil law is its chief topic: 
It reproduces the matter in digests, but without a reference 
to the ultimate and paramount authority of the Veda. Soma- 
deva's book is taken upon with moral maxims. It could have 
little use to an administrator. Hemacandra's book might 
have been used in a Jain kingdom, like that of Kumrap3la, 
but it is, at its best, a poor substitute for the works of Hema- 
candra's contemporaries VijnSnes'vara and Laksmidhara. 
The aim of the Jain monk and polyhistor was to establish his 
claim to all-round learning and not to add sensibly to the 
literature of polity or law. The literature of Rajadhanna, 
contained in the later digests more properly belongs to Dharma- 

There is another reason for the imperfect comprehension 
of the scope of Dharmasrastra and its content. It consists 
in the misunderstanding of the small quantum of " worldly " 
rnatter in stnrtis, particularly in those of the earlier and later 


times, and its absence in many of them. On the other hand, 
there are smrtis of the middle period (fifth to eighth century 
A.D.), which omit everything but the " civil law ". Nfrrada- 
smrti is an example. The lost works of S'ankha-Likhita, 
Harita (prose), Katyayana and Brhaspati seem to have had a 
large " civil law " content. The works of Manu and Yajna- 
valkya are comprehensive, and of the two, the latter, though 
very closedly related in doctrine and attitude to Arthasfastra 
(perhaps even to Kautilya's work) is relatively sketchy on 
politics. Parasrarasmrti, which commends itself as the one 
pre-eminently indicated for the present age, is pre- occupied 
with dcara and prayasccitta and ignores law and politics 
completely. Is it to be inferred that the subjects were regarded 
as of no value to the present age ? The core of purely legal 
matter, in the modern sense, in the Dharmasutras of Gautama, 
Apastamba, Bodhayana, Vasistha and Visnu is thin, and forms 
in each work but a small proportion of the total. Lost 
verse smrtis like those of Yama, Vyasa and others, seem to 
have dealt with both sides, but it is impossible in their present 
fragmentary condition to guess the relative proportions of the 
two sections in their original state. The usual explanation is 
that the different proportions reflect the secular or unsecular 
bias of the writers. The sutras and later smrtis are supposed 
to have been preoccupied with religion and ceremonial, a few 
only dealing with " law ", under the influence of Arthasfastra. 
The later smrtis belong roughly to the same age as KSman- 
daka. If, under the influence of Arthasfastra^ they devoted 
themselves to legal questions to the exclusion of religious 
and half-religious-topics, it is remarkable that Kamandaka, 
who was deliberately modelling his book on Kautilya's 
Arthasfastra, should completely ignore civil law and adminis- 
tration, which form a glory of his original, though even in it, the 


sections dealing with law proper form but a small part of the 
whole. Kamandaka's omissions should therefore be explained, 
like that of Somadeva, on the ground that he assumed the 
prevalent civil codes like those of Narada. The theory of bias 
must accordingly fail. An efficient cause may also be found in 
the literary form of smrti literature of the earlier epoch, and 
the methods in vogue for the transmission of doctrine. The 
older smrtis are not only in prose but in aphoristic prose 
(sutra), devised for memorising and for economy. A sutra 
was not intended to be read. The aphorisms would usually 
be unintelligible to the uninitiated. The purpose of aphorisms 
was to act as sign-posts, and keep the real exposition to the 
track. It was so in Buddhist as in Brahmanic literature. The 
yloka, which came in to vogue later on was in some respects as 
useful. Its rhythm enabled it to stick to the memory, and it was 
more intelligible than a sutra. But it lacked brevity, on which 
much store was set. In the earliest epochs of Vedic study, 
the Kalpasutra would be taught in the school of the branch 
(ffakha) of a particular Veda, and the traditional explanation 
would be handed down in the school. It would not be reduced 
to writing but be available for recitation in class. The paramount 
value of the teachings of the Buddha and the belief that the 
Suttas (sQtras) of the Tripitaka reproduced his actual words, 
made the early Buddhists arrange for recitations of Suttas in 
the annual gatherings of the Sangha. No similar compelling 
motive was present in the case of Dharmas'as'tras, which 
did not always form part of the Kalpasutra of any particular 
Vedic school. Their commentaries were handed down from 
teacher to pupil, and ran the risk of becoming lost, when those 
who possessed the traditional explanation perished. When 
smrti material was reorganised as a collection (samhitti), in 
a comprehensive work, it incorporated much explanatory 


material till then preserved by oral transmission. The Manu- 
smrti apparently incorporated much matter of the kind, as also 
the Brhaspatismrti, judging from the character of its fragments. 
Invasions and wars must have interrupted the work of trans* 
mission. To such calamities must be attributed the loss of much 
smrti material and the earliest commentaries embodying oral 
tradition. Among the lost commentaries that of Yajnasvamin 
on Vasistha, Asahaya's bhasyas on Manu and Gautama, and the 
commentaries on Visnu, Katyayana and Brhaspatf must be 
counted. Again, the oldest commentaries on the Dharamasfitras 
are removed by centuries from their texts. We regard Karka, 
Maskarin and Haradatta as very old commentators, but between 
each of them and his original, twelve to fifteen centuries must 
have run. The distance in time between Manustnrti and 
MedhStithi, or Yajnavalkya and Vis'varfipa is much less. It 
is only from the bhasyas, or elaborate commentaries, which 
came nearest the oral transmission of the interpretation of the 
s&tra literature, that one can form an idea of the space originally 
occupied by the different heads of a subject of the sutras, and 
of the relative importance attached to them. For instance, 
the first four aphorisms of the Brahmasutra are deemed 
relatively the most important in about a hundred and fifty, 
forming the whole, but they take up over a fourth of the whole 
space in the great commentaries of S'ankara and Ramanuja. 
In the absence of continuous traditional interpretation, there 
was always the risk of misapprehension of the views of the 
original sutra, even when shorter explanations embodying the 
traditional view, known as vdrttikah were supplied, as they 
were in many cases. But, even these were often criticised as 
not correctly conveying the meaning and drift of the stitra, 
and the declared purpose of a bh&sya was to explain, correct and 
supplement the v&rttiba, The Mah&bhtisya does so in regard 


to the grammatical aphorisms of Panini and the vrtti of 
Katytyana. Kumarila does so in explaining the aphorisms of 
Jaimini and commenting on the bhasya of S'abara. 1 Without 
vdrttika and bhasya, a sutra book is often not only not intelli- 
gible, but it is apt to mislead. Take the case of Kautilya's 
work. At the end of it, there is a vloka which declares that 
having had experience of the contradictions between originals 
and commentaries, Visnugupta (i.e. Kautilya) composed both 
the siitra and the bhasya. The text of the Arthayastra of 
Kautilya is mostly in prose, though there are many verses 
interspersed. They have all been usually taken as sutra. Maha- 
mahopadhyaya T. Ganapati S'astri, to whom we owe both a 
good text and a valuable commentary, accepted the last s f loJca 
as authentic, and regarded the brief statements of the content 
in the introductory chapter (adhikarana-samuddes'a), which 
are reproduced at the beginning of chapters, as the original 
aphorisms (sutra) and the substance of each chapter as the 
commentary of Kautilya. The view merits acceptance. The 
aphorisms are just like chapter headings nothing more. Sutras 
like Vyavaharasthapana and Dayabhdgah are just headings. 
Suppose only these aphorisms or headings survived from the 
work of Kautilya. Could anything be gathered from them of 
his views, which are now so well-known ? As verse smrtis are 
often the lineal successors of sutra works, the peculiarity may 
be postulated of them also. The long discussions of the great 
bhasyakdras, who commented at length on Manusmrti and 
Ydjnavalkya-smrti will then be viewed as carrying on the 
tradition of the transmission of authentic interpretation of such 
aphoristic literature. The * tacking ' of Madhavacarya, in his 
well-known commentary on Pards f arasmrti t of a whole book 

* Curiously, the works of Kumarila are entitled v&rtilkas and tika, while 
Sahara's work is styled bhasya. 


of civil law (vyavahdra) and maxims of government to A 
quarter-verse of the smrti (Raja dharmena palayet) will then 
be recognised as not exceeding the legitimate duty of a com- 
mentator, and his elaboration of the civil law, which the 
original appears to ignore as not a mere tour de force. 

and nibandhas (digests) continued to be 
written up to the threshold of our own times. Nevertheless, 
there has been an increasing neglect of Dharmas'dstrc. It has 
not only shared the misfortune of all technical literature in 
Sanskrit through the drying up of the springs of patronage, but 
it has also suffered from another cause. The contact between 
European and Indian cultures in the 19th century produced, 
in Hindus, in the beginning an admiration for the former and 
induced an apologetic attitude for the supposed crudities of 
the latter. There came, later on, a new love for and pride in 
their ancient literature. But the revival helped only the study 
of the Veda and its auxiliaries, classical Sanskrit literature, and 
Indian philosophical systems. Dharmas'astra had little share in 
the revived interest. Its very mass repelled all but the few who 
devoted their time to the Kalpasutras, in their triple division 
of vrauta, grhya and dharma. Manusmrti was an exception. 
It is illustrative of the indiscriminate trend of the movement 
that when translations of even the smaller smrtis of Narada, 
Vinu and Brhaspati were included in Max Mailer's " Sacred 
Books of the East/' a version of the samhitd of Yajnavalkya, 
which had been so great an attraction, was not finally included 
in the series. Recent interest is due to lawyers and judges, who 
know Sanskrit. Indifference to Dharmavdstra is still pretty 
general, and may be traced to the feeling that ' things that 
matter ' like law and politics, are wanting in such " priestly " 
books. Most students have neither the patience nor the 


conviction, which taade Colebrooke obtain a grounding in 
Mlm&msa, which is so vital to an understanding of Dharma- 
srfatra, before he translated the Digest of Jagannatha. 

The result is regrettable in view of the excellent progress 
made in the study of our history, and of the application of 
the comparative or historical method to law and politics. Sir 
Henry Maine's influence was an important factor of the 
change.* It helped to supersede the analytical study of Indian 
law and politics by the historical. Institutions are now viewed 
as growths which suggest lines of evolution. The reciprocal 
influence of idea and environment is assumed and investi- 
gated. Institutions, movements and ideas are judged with- 
out bias. But, have these safeguards been applied in the study 
of Dharmavastra ? Is it not a common tendency to assume 
ignorance, prejudice and self-interest as the ruling motives 
of hierarchy, and to regard them as present in Dharmay&stra, 
because it apparently emanates from the priestly class ? Even a 
cursory view of Dharma&dstra must dispel such ideas. The 
critical faculty is not the monopoly of the modern age, any more 
than reasoned scepticism. S'abara indulges, in quite a c modern ' 
manner, in flings at priests and their selfishness when 
he comments on the purpose of some Vedic rites. KauVilya 
does not spare his own teacher. S'ahkarabhafta does not 
spare his father, the renowned Kamalakara. Good faith and 
competence alone earn respect for authority from our ' legal ' 

Doctrines which sound strange to us are not necessarily un- 
sound. Nor can we presume that in an earlier age they were not 
considered reasonable and well-grounded. Take the instance 
of the doctrine that the king and the Brahman uphold tb 


world-order. The acutest writers of India? accepted it, though 
they were aware of the weaknesses of individual rulers and 
Brahmans. Deliberate or veiled sophistry was certain of ex- 
posure in times in which logic was well-developed. Distortions 
of meaning were difficult when the rules of interpretation were 
clearly laid down and understood by those who used them. An 
author who misquoted a text, or altered its wording, would 
be promptly exposed. The care with which the texts were 
preserved, especially in technical literature, is seen in .the way 
in which bhasyas and digests notice and discuss even petty 
differences in reading. An authority opposed to one's own 
view is never ignored or suppressed. It is met squarely. 
The principle was enforced by the peculiar form adopted 
in exposition. The opposed statements were stated, then 
answered and the conclusion reached last. There were 
other conditions favouring literary integrity. Learning was 
localised in places like Kas'i, Paithan and Nasik. The wander- 
ing scholar, who carried his library in his head, roamed about 
as a pilgrim and made his learning pay for the tour, helped 
to keep ideas and books in circulation. A new book soon 
acquired an instantaneous influence and recognition proportion- 
ed to its merit, even in far-off places, in an age which had not 
the advantages of printing. The conditions made for uniform 
texts as well as the spread of new methods, new ideas and 
new doctrines in areas far removed from those in which 
they were first promulgated. Critical estimates of the honesty, 
accuracy, and reliability of writers were carefully canvassed, 
and spread throughout the country. New writers had need 
to be careful. Rivalry between scholars was keen and 
criticism sharp and unsparing. The conditions were such 
as to ensure integrity in texts, accuracy and fidelity in inter- 
pretation, logic in inference, and absence of bias in application. 


The spread of priestly impositions in such an atmosphere 
can be safely ruled out. 

But it is largely on such presumptions and on defective 
understanding that many views of our day about Dharmas&stra 
are based. J. J. Meyer, to take a distinguished example, dis- 
criminates between Indian works on magic and law, and places 
Dharmasfastra under the former. The view is akin to that 
which ascribes the birth of civil law (vyavah&ra) to the influ- 
ence of political environment, and its incorporation into 
Dharma^astra to an alliance between king and priest. The 
small content of ' law ' in smrtis, the existence of two classes 
of Mauryan courts, and the assumption that Indian thought 
differentiates between " religious " and " secular " elements are 
responsible for these wrong generalisations. They fail to recog- 
nise either the importance of unwritten law, preserved in the 
recollection of assessors and judges, who had to be trained in 
Dharmasfastra, or to the relative value to be attached to cus- 
tomary and king-made rules. Jolly's dictum that the character- 
istic of Dharmasrastra is high- flown religious idealism expresses 
a kindred view. To describe Artha&astra as ' public law ' and 
Dharmasf&stra as ' private law,' as a recent writer (B. K. 
Sarkar) does, is to miss the intimate relation between the 
Hindu state and family, and the duty of the former to correct 
irregularities of conduct by members of the latter. 

The Indian king was believed to be responsible as much for 
the correct conduct (ficara) of his subjects, and their performing 
the prescribed rites of expiation (prayascitta) as for punishing 
them, when they violated the right of property or committed a 
crime. The acara and prayascitta sections of the smrti cannot 
accordingly be put outside the " secular " law. The allied 


distinction between Arthasf Astra and Dharmavfotra on the plea 
that the former deals with real-politik and the latter with ideals, 
over-looks the fact that when judges and parties shared the 
game ideals, as expressed in smrtis, ideals were translated into 
action, and that there was an " idealistic " element in Artha- 
v&stra as much as in Dharmasr&stra. Breloer's view that 
Arthavfistra is " planned economy " is correct taken by itself, 
but the * plan ' is part of a wider scheme of social organisation, 
laid down in Dharmasr&stra. Dr. K. P. Jayaswal's distinction 
between Arthasr&stra, Eajantti, and Dharmasr&stra as that 
between " municipal and secular law ", " constitutional law," 
and *' penance law " is not only based on superficial observation 
but on the disputable view of the origin and function of the 
two classes of Mauryan courts, and a failure to observe, that 
Rdjantti in the widest sense will include (as Sarkar realises), 
all Dharmasr&stra. The occasional identification of Dharma* 
srdatra and vox populi is due to the translation of ' Mah&jana,' 
in a famous verse from the Mahabharata, into ' the populace/ 
whereas it only means a magnanimous man learned in 

Illustrations can be multiplied of the prevailing mis- 
conception of Dhartnav&stra and its supposed rivals. Its 
primary cause is a failure to start, as in many nibandhas, 
with a chapter dealing with definitions of terms, (paribh&sd) 
in which the term Dharma is explained. The word Dharma 
is indeed difficult to define, and Apastamba, in a famous 
passage, states that it is best to gather its import from 
practice. Indian logic (Nydya) defined it as an innate 
quality of the soul, action enjoined (i.e. by the Veda). The 
idea is further developed in Mlm&msd,. Dharma is that which 
is signified by a direction and results in a benefit, The Ny&ya 


school held that an invisible effect, called aptirva attached 

itself to the soul by the performance of an enjoined act 

(Dharma), and lasted till the benefit actually accrued to the 

soul. Dharma was thus regarded as fixed in action. A school 

held that its effect was instantaneous, though its manifestation 

had to wait till death. The idea is akin to the belief that 

good and bad actions are inseparable from the soul and guide 

its pilgrimage through existences (Karma, samsara). Dharma 

is viewgd as the norm, which sustains the universe, and in 

this sense is somewhat like the Vedic Btam, and the Greek 

Law of Nature. For practical purposes, Dharma can be taken as 

the innate principle of anything in virtue of which it is what it 

is. Analysed and applied, the conception becomes ethically 

duty, physically essential property, spirituality in religion, and 

righteousness or law in popular usage. Manu equates Dharma 

with merit flowing from doing the right thing (puny a), and in 

that sense it is described as the only thing which follows the 

soul. The belief in a moral God leads to the identification 

of Dharma with the Deity. Viewed in its working, Dharma 

is law of cause and effect, and is described as destroying when 

violated and protecting when obeyed. Innate quality and 

potentiality are related ; so Dharma is taken to be the mean 

between the ideal and the possible. The many wide extensions 

which are given to the term by itself and in combination 

with qualifying words, is illustrated in the recently published 

Dharmako&a. The Buddhist adopted the concept, omitting 

the postulate of its being due to Vedic injunction. It becomes 

the root-principle of cosmic order, by finding which one can 

obtain liberation (nirvana). It includes and underlies every 

law, physical, ethical, and human, and it is eternal. It forms 

therefore, along with the Buddha and the Sahgha the Triratnq 

(Three Jewels) of Buddhism, 


Strictly construed, every science will thus be Dharma- 
but the term was restricted to enjoined human action. 
So conceived, it was divided into pravrtti and nivttti Dharma, 
according as its end was action or freedom from it, into 
ordinary and extra-ordinary, (s&dh&rana^ as&dh&rana), into 
ista and ptirta (viewed from the standpoint of enjoined Vedic 
ritual), and as relating to varna (caste), station (fiyrama) % 
caste and station (varndyrama), quality (guna) and context 
(nimitta). The divisions were subdivided, as genera^ special, 
equal and emergent e.g. Asrramadharma. 

If differences springing from detail are put aside, Dharma 
is the whole duty of man. It includes not only the relations 
of man to man, but of man to the Universe. Whatever is 
enjoined by authority or the inward promptings of conscience 
is Dharma and comes within the scope of Dharmasrftstra. In 
this sense its scope is encyclopaedic, and it comprehends all 
knowledge. This idea is implicit in the enumeration of the 
location of Dharma (Dharmasthdna) which brings all know* 
ledge within it. The PurSnas alone rival Dharmay Astra in 
so a wide scope. VijMnes'vara brings Arth ay Astra, on this 
among other grounds, under DharmasfHstra. Apart from the 
relevance of legal medicine in any system of law, Ayurveda 
(Medicine) is one of the Dharmasthdnas. So are Astrology, 
(Jyautisa) and Natural Science (Laksana). Two famous collec- 
tions, both of Dharmas'astra, made in the 16 L h century illustrate 
this view. Mitramisra's Vlramitrodaya has these branches 
among its 22 books. So has Todar Mai's less famous Dharma* 
saukhya. Sometimes, the relevant information from a branch 
may alone be brought in ; as medical knowledge in the treat- 
ment of grievous hurt, questions of paternity determination, 
the relative position of twin children, the liabilities of 


professional soldiers, etc. Hut certain sections were deemed 
essential in a Dharmayastra. 

The best example of a complete Dharma digest (Dharma- 
nibandha) is the Krtyakalpataru of Bhaa Lakmidhara. It 
is the oldest now available, and one of the most comprehensive 
and authoritative. It adopts a special arrangement not found 
in other digests. Taking the life of man to begin (as Hindu 
jurisprudence held it to begin) with conception in the womb, 
and to end in salvation after death (Mok$a), Laksmldhara 
expounds the traditional view of the public and private duties 
of man in a sequence following the progress of life and station. 
The first book begins with the period of dedicated study 
(Brahmacarya). The second is devoted to the house-holder, 
t.0., the ordinary citizen (Grhastha), and the third to the 
daily and periodical duties, and the proper time for their 
performance (Niyatakdla). The offering of oblations to 
ancestors is an essential duty, signifying the continued exist* 
ence of the family. The ceremonies connected with this duty 
(S'r&ddha) occupy the fourth book. In the Iron Age (Kaliyuga) 
an easy way of acquiring merit is by making gifts (Ddna) 
which form the subject of the fifth book. The dedication of 
objects of worship (Pratitfha), and the rites of worship (Pujcl) 
take up the next two sections. Merit (puriya) accrues and 
demerit disappears. Pilgrimages to holy places or streams 
(Tlrtha) are performed. But pilgrimage cannot get rid of the 
need for ceremonial expiation, which is prescribed for all 
transgressions. The rites of expiation (Prdyascitta) perhaps 
took up another entire book which is now lost. Ceremonial im- 
purity is believed to arise from birth, death, action, and contact. 
Purification from such impurity (Sfuddhi) is therefore next 
dealt with. Thus far all the sections are common to persons 


irrespective of their civil status. But, kings have not only to 
enforce, as part of their regal duty, the performance by every 
one of his special duty, but they have other duties springing 
from the headship of society. These are brought together in a 
separate section, named Rdjadharmakdnda. The commonest 
work of the king, in a society, in which public opinion largely 
enforces the performance of religious and sacramental 
duties, even apart from State-compulsion, is that of seeing 
that every man's person, property and status are not violated 
by any other person. Disputes concerning these come 
under Vyavahdra, with its eighteen conventional titles. The 
two sections ordinarily viewed as politics and law, form 
the twelfth and eleventh books. Among the duties of the 
king was that of performing public ceremonies, believed to 
be able to combat evil influences threatening society or its 
head. Misfortune is heralded by alarming portents (adbhuta). 
The treatment of these is taken up in the thirteenth section 
on propitiation (Santi). To every one comes death, and the 
way to release (Mok?a) if life has been properly lived. Its 
treatment concludes a vast treatise in fourteen sections, typical 
of the content of Dharmasfastra. 

Laksmidhara's great book was written to a king's order. 
It has been described to show the correct view of the scope of 
a smrti or nibandha. Many digests were written subsequently, 
but with the exception of Vlramitrodaya, none formally 
treats of all the sections in the Krtyakalpataru, though more 
or less the same matter is distributed in them. Sometimes, 
entire sections are omitted in certain digests, e.g. Rdjadharma, 
in the narrower sense, in Smrticandrikd, and Vyavahdra 
and Rdjadharma in Smrtimuktdphala, to refer to two digests 
with which we are familiar in South India. Their authors had 


no political and forensic experience and so they refrained from 
dealing with what they did not know. The same reason will 
explain why Candes'vara omits the sections dealing with con- 
secration, purification, expiation, propitiation and salvation in 
his Rattiakara. He was a Thakur and not a full Brahman. 
Lakmfdhara was not merely a learned Brahman, but he had 
held successively every major administrative office, under a 
powerful king, before he commenced his digest. He did not 
feel debarred either by want of administrative experience or 
of S'rotriya status from dealing with every division or topic 
of Dharma. 

The correct perception of the scope and content of Dhar* 
masrastra, and of the means of ascertaining Dharma, requires, 
as an antecedent condition, a grasp of the major assumptions 
or postulates of Indian belief and their logical implications. 
The more important of them may be indicated. First in impor- 
tance were two allied hypotheses : " Dharma has its root and 
finds its sanction in revelation (Veda), 11 and " the sole subject 
of revealed literature (Veda) is Dharma." The Veda is 
boundless, eternal, uncreated, omniscient, and consistent 
with itself and ultimate reality. In its branches, and in the 
knowledge derived from it, it is one-pointed. All of them aim 
at a common goal, teach the same doctrine, and their authority 
is equal. The purpose of life is four-fold, viz. the pursuit of 
welfare, of pleasure and salvation, (artha, kama, moksa) along 
with the performance of Dharma ; and the four-fold purpose 
corresponds to and is rendered possible of attainment by 
the four-fold division of the population (cdturvarna) and the 
four-fold division of life (caturdyrama). From these premises 
a number of inferences of importance for the determination 
of valid conclusions were drawn by close reasoning* They 


demanded and obtained universal acceptance. A few of 
them may be mentioned illustratively. The hypotheses 
in regard to the Veda led to the conclusion that any 
rule in a smrti for which a Vedic source can be found 
becomes invested with the infallibility of the Veda, and 
its binding authority cannot be questioned. The first duty 
of a commentator is to search the Veda for the authority 
for any rule. S'abara, Rumania and later writers of 
Uimdmsd revel in such research. Visrvarflpa fexcels in 
finding Vedic authority for the text of Yajfiavalkya, and 
Medhatithi for that of Manu. Since the Veda is limitless, it 
might be presumed that a portion of it has still to be found. 
But as human ingenuity and skill cannot be equal,* in our 
degenerate times, to the discovery of the Vedic source of every 
smrti rule, those rules for which such an origin cannot be 
found, are not to be rejected, if they are still found in a 
stnrii t as that raises the presumption that the author of it had 
the Vedic source before him which eludes the commentator. 
Its operation will therefore he held in suspense. The Veda is 
the bed-rock of Hindu religion. As Dharma is its only relevant 
content, the science which lays down Dharma (Dharmasrfatra) 
has the binding character of revelation. The hypothesis 
that Dharma creates a benefit, which attaches itself to the 
soul (atman) leading to a happy result ultimately, made the 
exact study of Dharmasrfotra a paramount duty. 

An infallible Veda cannot contain any internal incon* 
sistency. Nor can it be really in conflict with what is manifest 
to experience. Since all knowledge has an ultimate Vedic 
basis, every branch of knowledge must be in accord with every 
other. Veda and stnfti must agree; so should smrti and 
sMtrti and Purina, and so on. The practice of good 


tnen, i.e., men brought up in a proper tradition, should be 
presumed to be in accord with Vedic injunction, and be 
accepted as a guide to conduct. Hereditary practice must 
raise a similar presumption, and so also common usage or 
custom. When there is an apparent discord between a rule 
derived from one source and that from another, every endea- 
vour should be made to reconcile them. Smrti like the Veda 
is limitless in extent. Hence, even an unnamed or unidenti- 
fied smrti text, (smrtyantara) must not be rejected, unless it 
is manifestly a forgery. So with a PurSna, or even an Upa- 
pur5na. There should be a close search for internal cortsist- 
ency. Caution is necessary in accepting guidance in so vast 
a field, and there should be no hesitation in rejecting unauthen- 
tic rules. An illustration may be given. The rule that a boy, 
who had undergone samskdras ending with investiture (ufra- 
nayana) in the father's house, cannot be taken in adoption is 
laid down in the Kalikd Purdria. After showing that the text, 
even if genuine, should be construed differently, Nilakantha 
and Anantadeva ultimately reject it, as it was not found in 
several MSS. of the Purana, and so was unauthentic. The 
license to search for sanction over so wide field did not lead 
to carelessness. It induced on the other hand exceptional 
vigilance in scrutinising every text cited as authority. The 
rules of interpretation were made more critical, refined and 
subtle, and so was also their application to the interpretation 
of rules of Dharma as guiding conduct. 

The interpretation of Dharma and the adjudication of 
disputes on its basis was obviously not work for amateurs. 
To have the King preside over a court and hear cases might 
be embarrassing. He was therefore replaced by the trained 
judge, and the equally trained assessors who were to find the 


verdict. It was open even to an expert visitor to intervene in 
a trial and state his view as amicus curiae. When there was 
either conflict between rules or authority, or between rule 
and usage, or when no rule could be found or the custom cited 
had to be examined for evidence of authenticity, the questions 
were to be decided by an ad hoc commission of experts, called 
parisad, for the constitution of which elaborate rules were laid 
down. These were three safeguards to ensure proper adjudi- 
cation. A fourth lay in the power conferred on an expert to 
state the law on a disputed point, (like a jurisconsult) as a 
vyavasthd, and the medieval collections of vyavasthds were 
not unlike response* prudentam in Rome. The opinion of 
a commentator or digest was to be honoured as vyavasthft. 
Special treatises on moot points (dvaita-nirnaya) commanded 
the respect they deserved. 

But for all decisions and their soundness the ultimate 
responsibility was laid on the king or the state. It was in this 
way that Dharmaffastra in its comprehensive sense became 
the law of the country, and as it was the king who enforced 
its rules, it became Rajadharma 


THE fii^t impression created by even a superficial view of 
the extant literature of Dharma&astra is its vastness. But what 
has survived is only a very small part of what must have been 
composed. Indian social and literary history testifies to tireless 
industry in the production of this form of literature amidst 
the storm and stress of the centuries. Calamities like bar* 
barian invasion, internecine war, the impact of alien religions 
and cultures and political vicissitudes were powerless to stay 
the creative activity. In such circumstances a disproportion- 
ately large number of the intellectual and religious leaders 
of the community must have been eliminated, even if they 
were not deliberately singled out for extirpation by a ruler 
of an hostile religion or culture. Protracted wars have 
usually resulted in a cultural set-back, and the recovery 
takes times. That it worked so in India also cannot be 
doubted. But the wonderful activity in the cultivation 
of Dharmaff&stra continued, almost without cessation, even 
in the middle of wars and foreign invasions, and was some- 
times even helped by them. What is the cause of the paradox ? 
What is the compelling influence which gave the subject 
an enduring vitality and power of recuperation ? An answer 
to the questions throws light not only on the vitality of a 
subject, which was closely associated with religion and 
regulated modes of life, but it reveals special features of the 


governments of the time and their relations to the lives of 
the people. 

like religion, dealt with the whole life, 
not with only a part of it. No one was outside its jurisdic- 
tion : the individual, the family, the corporations, and 
the king were all under it. It upheld the ideal of an 
indissoluble union between state and society, and king and 
subject. The welfare of the king was held to be rooted in the 
well-being of the people. Political union was sanctified by religi- 
ous sanction. The King and Dantfa, the Spirit of Punishment 
(the power of sanction) were both of divine creation. Anarchy 
was abhorred. A condition of statelessness was conceivable 
only in the Golden Age. The doctrines of karma and sams&ra 
linked like in this world with other existences and with the 
world order. A reciprocal influence, generated by Dhartna, 
was believed to connect right or wrong living with cosmic 
influences of a supernatural character. Good government 
ensured the happiness of the people and it did so by bringing 
into operation beneficent influences which made happiness 
certain. Under ideal rule, like that of R&ma, unhappiness 
and sorrow were unknown. A good king reproduced the 
conditions of the Golden Age, and a bad one intensified the 
sufferings of the Iron Age. On the king lies a responsibility, 
which cannot be shifted or shirked. He is the maker of the 
age (Rdja k&lasya k&ranam). The theory of this awful res- 
ponsibility of the state was enforced by telling illustrations. 
An Arjuna was given the name of the Hero of the Golden 
Age (Kdrta-vltya) because he was so vigilant that he 
corrected in his subjects even the impulse to wrong-doing. 
R&ma was described as having produced in an age of 
less perfection the ideal conditions of the Golden Age 


(Trcta-yuga-pravartita-karta-yuga-vrttanta). The union of 
king and subject was like that of soul and body. An evil ruler 
must be expelled. Taxes are the king's wages ; he must earn 
them by good government. His freedom to do what he likes 
ends with his coronation (abhi?eka). Thence forward his life 
is dedicated to the maintenance of Dharma. 

Faith in the reciprocal influence of human righteousness 
and the .order of the universe, which is a teaching of religion, 
was thus harnessed to social comity, mutual co-operation and 
obedience to the state. To disobey the king was not merely 
imprudent ; it was a deriliction of Dharma. Conversely op- 
pression was not only risky and foolish, but it was A-dharma, 
and will lead to prompt retribution both in this world and 
in others. The fire engendered in the hearts of men by 
tyrannical rule will burn the king and his dynasty. 
If God (Visnu) is in the king, He is no less in the subject. 

These high conceptions of duty lead to the proposition 
that good government requires a correct knowledge of Dharma 
on the part of the ruler. He should know not only his own 
duties but fully visualise those of every one else in the kingdom. 
Unhappiness is a sign of error in governing ; and as it springs 
often from social misfits, the discovery and correction of such 
misfits is a primary duty of the state. As all duties are implicit 
in Dharma, its vast literature and sources must be explored 
for the discovery of remedies for injustice and evil, and for 
the solution of problems continuously thrown up by changing 
times and circumstances. The belief in the divine character 
of Dharma and its universality of applicability to all timed 
and circumstances, makes the discovery of remedies to social 
evils, - the aim of research hi Dharma. Dhartna adjusts 

36 RlJADHAKfttA 

obligation to capacity. How far would the principle justify 
reduction of the weight of caste duties in times of stress, or 
in the general decline of the Iron Age ? Were rules to be the 
same after the ravages of war, conquest, alien settlement, the 
penetration into society of the barbarian (mlcccha), the multi- 
plicity of economic occupation, enforced departures from 
functional grouping, and divorce of privilege and the merit 
to justify it ? 

In the answers to such questions will be found the re- 
orientation of Dharma. The adjustment of law to the needs 
of society has usually been made in three ways : by legal fiction, 
by equity and by legislation. In the evolution of Dharma 
by interpretation and by research, we can see the influence of 
the first two but not of the third. But, unlike the fictions, 
which were deliberately used by the civil lawyers of Europe, 
for reconciling the letter of the law and the needs of society, 
the hypotheses which served the same purpose in India were 
those which were believed in as part of religious dogma. The 
possibility of a sceptical jurist in ancient or medieval India 
cannot be ruled out, but the probabilities are that every change 
made by interpretation was made in the honest belief that it 
was necessary to vindicate Dharma. 

Even advanced thinkers are usually the creatures of their 
age. A study of the variations of opinion among Indian writers 
on Dharmayastra will not disclose much chronological pro* 
gress in ideas, and so-called " liberal views " may be found in 
writers of earlier and " conservative " leaning in those of later 
times. The existence of schools clustering round a great 
teacher or writer like Kautilya might lead to progress within 
the school. Of this we have parallel evidence in Indian 


systems of philosophy. But till a late stage, cleavages of 
opinion, which would have led to the formation of schools 
of thought, did not arise in Dhartnavdstra, though we can 
trace divergence of opinion far back. Later differences have 
been classified as ( schools ' and been treated as racial and 
provincial, though to those who held the views aimed at tenets, 
the universal acceptance. 

The* Mauryan empire saw Buddhism rise to the rank of 
an Imperial religion, but Buddhism was heresy, according to 
Dharmas'dstra. The period of barbarian invasions which 
followed the break-down of the empire of Magadha raised new 
problems of adjustment. Among them, the most important 
were readmission to varnas of those who had gone out of them 
voluntarily or otherwise, the restitution of rights to abducted 
and outraged women, condonation (after purificatory or ex- 
piatory rites) of breaches of duty and failure to observe the 
sacramental rules, a new attitude towards non-ksatriya kings, 
the recognition of renunciation (samnyasa)by others than Brah- 
mans, acceptance of foreigners who embraced Brahmanism, 
the reduction of ceremonies which were beyond the strength 
of the people in altered conditions, permission of divorce and 
remarriage of women, and realignment privilege and duty to 
position and responsibility. 

The hypothesis that Dharma was good for all time and all 
circumstances acted as the Law of Nature did in the evolution 
of Roman law. The processes by which the adjustment of 
Dharma was insensibly effected were, however, natural and 
logically followed from the primary hypothesis. The general 
lines are clear. Smrtis were classified into those which 
bad a ' visible ' and an ' invisible ' purpose (dftfartha and 


adrtfdrtha). To the former Vedic infallibility did not apply 
as their aim was wealth and pleasure as contrasted with the 
performance of enjoined duty and salvation of the latter. The 
latter prevailed over the former. Secondly, the authority of a 
smrti depended on its merit sui generis. In a remarkable 
passage, Medhatithi dismisses the enumeration of valid smrtis 
as futile because there is no end to it, and even a smfti 
composed in the present generation might, if its doctrine 
was sound, become an .authority. Thirdly, the rule of 
logical interpretation (nydya) which Kautilya advocated 
and Manu condemned, received wide support. Fourthly, the 
application of valid usage was helped by the injunction to make 
official records of custom. Customary law was systematised, 
classified and made applicable to the groups concerned. The 
doctrine that weakness demands reduced rigor in penance, 
took the form of Yuga-dharma, accepted in the sense, 
not that it alone is operative universally in the Yuga or age 
concerned, but that it gives an option for a lenient construc- 
tion of duty. The recommendation of gifts (dan a) and faith 
(bhakti) in preference to sacrifice (Yajna) and penance 
(prdyasccitta), the acceptance of the principle of substitution 
(pratinidhi) to meet cases in which the original cannot 
he produced (e.g. kricchra replaced by a money gift to 
one who does it for the donor), and the principle that certain 
ancient rites, which were not recommended, may be omitted 
in Kali-yuga (Kalivarjyas), moved in this direction. In the 
last category, it was the tendency to include customs 
which had gone out of use, like the levirate (niyoga) or rites 
which became impracticable (like the Avvamcdha sacrifice). 
Rules of pollution (in the case of town life as pointed out by 
Nanda Pan<Jita) were relaxed in marriages, festivals, pilgrimage, 
war and personal danger. The practice of -referring questions 


to Parifada gained ground, and caste-pariads to settle caste 
piles came into vogue, in imitation of the original. 

These changes, along with the appearance on the stage of 
rulers who accepted the responsibility to enforce Dharma, but 
had not been brought up in the old tradition, necessitated a 
recasting of smrti literature. When a political purpose was 
behind the recasting, as has been suggested by the late 
Dr. Jayacwal, in regard to Manusmrti, the rules tended to go 
back to the old ideals, e.g. the condemnation of S'Gdra mendi- 
cancy and celibacy, and magnification of the Brahman. The 
new dynasties, which were either contemporaries of the 
S'ungas or came after them, were of dubious caste. Greeks 
and Scythians, who had no strong religion ol their own, and no 
caste system embraced Brahmanism, and showed excessive 
zeal like all converts. The horse-sacrifice, which is one of the 
Kalivarjyas, is performed by rulers of doubtful caste, as well 
as by Brahman Kings like Pusyamitra and the Bharas'ivas. 
The S'atakarnis and the early Pallava rulers performed it. So 
did the Kadambas and the Gangas, as well as the Vaka{akas. 
Even the Kusan Vasiska claims to have done one. Samudra- 
gupta, who raised a principality to an empire, and gloried in 
his relation to an out-caste class, performed two horse 
sacrifices. Heliodorus, a Greek envoy, calls himself a devotee 
of Visnu (bhagavata) and erects a column in a Visnu temple. 
The Huns, who were more cruel than other invaders, become 
worshippers of Visnu. The depressing conditions of the 
age are reflected in an increasing addiction to magic. The 
altered circumstances are seen in the new smrtis and 
Purftgas. The literary Renaissance of the Gupta epoch 
shows the fillip given to new forms of old ideals under the 
inspiration of the Gupta dynasty. An empire has to be governed. 


Civil law is more complex and requires specialists to enunciate 
it. The demand id met by the versified smrtis of Yijftavalkya, 
Brhaspati, NSrada and KStyayana. 

Cleavages of opinion between the stnrtis and their interpret- 
ers necessitate the production of adequate scholia. The new 
commentator cannot however rest content with brief explana- 
tions. He must attempt an exposition (Bh&sya). Asahaya (600 
A.D.), Vis'varQpa (800 A.D.), MedhStithi (850 A.D.y illustrate 
this movement. The powerful support given to the spread of 
Mimamta doctrine by Kumarila and to philosophical speculation 
by S'ankara swept away the lingering remnants of Buddh- 
ism. Mlmdmsa also furnished a potent instrument of smrti 
interpretation. New dynasties came to power from the eighth 
century onwards, and history repeated itself. A great impetus 
was again given to the writing of commentaries and digests. 
The first experiments in ' legal ' comprehension took the form 
of condensed verse summaries of the conclusions of the major 
stnrtis, which could be memorised and commented on in 
schools. Examples of it are Medhatithi's lost Smrtiviveka and 
the anonymous Smrtisarasangruha, Caturvimsfatimata and 
Sattrims'antnata, but even these did not meet the new demand 
for full enunciation of Dharma. New motives for re- 
examination of the content of Dharma literature came after the 
Musalman invasions and settlement. There had been whole- 
sale enslavement and forcible conversion to Islam of Hindu 
men and women. The attempt to rehabilitate them is reflect- 
ed in Devalasmrti, which declares with vehemence that all 
smrtis opposed to it were void. The new Rajput dynasties, 
which came into prominence after the eleventh century, like the 
Gaharwars of Kanauj, the Paramars of Mfilva, and the Yadavas 
of Devagiri were fervidly Hindu* Nothing but wholesale 


recapitulation of Dharmay&stra will satisfy them. Large digests 
(Nibandhdh) become the fashion in every Court. We have lost 
King Bhoja's celebrated digest, Gopala's K&tnadhenu and 
several other works of the kind, born of this movement. The 
MitdJcsara is virtually a digest though greatly limited by its 
text. The ruler of a modest kingdom in Konkan, the S'il&hara 
Apararka, wins lasting fame by an extensive commentary on 
Ydjflavalkyasmrti. But the most exhaustive of the digests is 
easily the Krtyakalpataru produced by Laksmidhara, by com- 
mand of king Govindacandra. In Bengal, Ballalasena and his 
teacher Aniruddha produced great digests. The stupendous 
digest of Hemadri, which covered only part of the ground, was 
the contribution of the new kingdom of Devagiri. 

The later digests like those of Vis'ves'varabhatta, Madana- 
simha and Dalapati are useful, along with the digests of 
Cancjesvara and Vacaspati Misra, in showing how even under 
Muhammadan rule, the devotion to Hindu Dharma was sus- 
tained. The impulse to compose treatises on Dhar mas' Astra 
showed no sign of weakening, whether the head of the Musal- 
man empire was a broad-minded ruler like Akbar or a staunch 
iconoclast like Aurangzib. We owe the great digest of Mitra 
Misra to the revivalist zeal of a Bundela prince, who 
ambushed Abul Fazl, and became the friend of Jahangir. The 
still better known Mayukhas were composed to the order of 
a petty Hindu chieftain. The production of such works in 
an epoch in which no Hindu ruler in Hindustan enjoyed 
independence, or under the patronage of Musalman rulers, was 
due to either or both of two motives, viz., the desire to 
acquire merit by causing to be written, a great work which 
will be as a guide to more fortunate rulers in the future, 
and secondly, to have for their own guidance in the small 


areas under their own rule, suitable codes of the full Hindu 
Dharma. The revivalist influence coupled with the ambition 
of new dynasties in commissioning great treatises is best 
illustrated by the first kings of Vijayanagara under whom 
Mfidhava wrote his famous works, including the commentary 
on Para&ara. 

Side by side with the production of digests and com- 
mentaries went on the writing of treatises on controverted 
points (Dvaita-Niryaya). They are most common in the 
literature of Mithila in the fitteenth and sixteenth centuries. 

It was impossible to compose a new nibandha for the 
purpose of settling a number of minor questions in dispute. 
The composition of a nibandha involved an amount of labour 
which could be done only by a large body of scholars acting under 
the supervision of a master. Nor could the doubtful points 
of Dharma be settled by convoking Parisads, as men with the 
needed qualifications could not be secured. A permanent 
commission of legal reference was also out of the question. 
The Pandita of the royal Court, the successor of the ancient 
Purodhd, had begun to replace him even in the Gupta period. 
S'ukranlti (12th century) makes it the duty of the Pandita to 
consider laws which appear to run counter to tradition and 
worldly experience and advise the king on suitable action. 
The work of Parisads was sometimes done by the assemblies 
of pandits specially convened in places like KasI, Paithan and 
Nasik, where there was always a number of learned men. 

The increase in the number of digests and commentaries 
did not altogether get rid of the embarrassment caused by 
conflict of views and doctrine. A conscientious ruler could 


ttot easily commission a new digest. It was an expensive 
business, requiring the services of a large number of scholars 
working under the direction of the digest-maker. The 
Mlm&msa rule allowing an option (vikalpa), wherever two or 
more unreconciled positions had each separate authority, 
tended to increase confusion. If the matter was to be settled 
a way was open. If the king, as well as his people, ceased 
to believe in traditional Dharma, the ruler could proceed to 
frame by royal edict a new body of simple, compact and 
uptodate laws. But if the king or the bulk of his subjects 
were orthodox, and relied on Dharmas'astra, the course was 
open only if they felt that it was possible to supersede 
Dharma&astra by loyal edict (rajas'asana), giving it the 
precedence, which it appeared to have in Kautilya's Artha* 
srastra. But the passage was interpreted, as the similar 
one of Yajnavalkya, as implying only the power of a king to 
declare the law which was not in opposition to Dharma, 
in cases in which there was doubt, and not as vesting in 
a ruler concurrent or superior law-making authority* Con* 
sistency required that the authority for the alleged power 
should be considered in its context and read with the injunc- 
tions, found in both Arthasrastra and Dharma&dstra, enjoining 
the king to adhere to Dharma. Both brought the king within 
the jurisdiction of law, and allowed decisions to be given against 
him in his own courts. Medhatithi roundly declared that a king 
cannot make a law over-riding Dharma. The personification of 
the power of punishment as a divinity was a picturesque way of 
expressing the view that the king is subject to law. The evi- 
dence of history does cot disclose any exercise of the alleged 
regal power of independent legislation. Asroka* who declared 
Dharma in bis edicts, merely enunciated doctrines which 
were equally acceptable to Brahman as well as to Buddhist, 


He dealt with what would have been called Sadhara#d t 
t.e., ordinary, Dharma. What little evidence there is appears to 
run counter to the claim. The point may be illustrated. In old 
Indian law, theft was a capital offence. The receiver of stolen 
property, even if he took it in good faith, or in the ordinary way 
of trade, might become liable to punishment. It is stated by 
Dai^cjm that the Mauryas made a rule that in cases where such 
property was found m the possession of merchants, the presump- 
tion should be of their innocence, and that they should not be 
punished as receivers of stolen property. The interpretation is 
equitable. In Indian law, the value of stolen property which 
was not recovered by the king had to be made good by him. 
A rule of the kind, alleged to have been made by the Mauryas, 
could only add to the king's own liability. Another instance 
is of a small alteration which As'oka claims to have made in 
criminal procedure. In Ancient India, the passing of a capital 
sentence was followed by immediate action. There was no 
time between sentence and execution. As'oka claims to have 
granted to such an offender a respite of three days, after sentence 
of death had been passed, to enable him to make his arrange- 
ments for spiritual benefit. It is noteworthy that As'oka did 
not claim a power of reprieve. In the Rdjadharmakanda we 
have recommendations to kings to release prisoners on the 
occasion of their coronation. But there is a universal excep- 
tion to the royal power of pardon, and that is in regard to the 
sentence of death, which cannot be set aside by a king. As'oka 
who forbade the slaughter of animals, restricted the prohibi- 
tion to the royal kitchen, and there is no evidence of his hav- 
ing interdicted the Vedic sacrifices. His prohibition of capon- 
ing and castration was merely an enforcement of the Dharma 
rule against bhru^ahatya. It is open to presume that if he felt he 
could change ihe law in the case of capital offences, the merciful 


emperor might have exercised the power. His absention should 
be construed in support of the position of Dharmasrastra that 
legislation by edict can declare law, but not make law contrary 
to Dharma. The unnamed Maurya of Dan(Jin might have been 
the great emperor himself. It is significant that a Buddhist 
ruler should have been chary of making a change of traditional 
Dharma, and his frequent references to Dhamma, usually taken 
as allusions to the Buddhist Dhamma, may as legitimately be 
viewed a to the Brahmanical Dharma. His Dharmavijaya is 
conquest according to the humane rules prescribed by 
Dharmas'astra. His Dharma-amdtya was no other than 
the Dharmadhikdrl. As'oka's partiality for the term might 
have been due to policy ; even a Buddhist ruler must con- 
form to the Dharma of his subjects. It may be noted that 
the Satraps of the Dakhan and the Pallavas, both reputed 
foreigners, styled themselves Dharmardjas. The Kadambas 
of Banavasi, who could not have ruled in strict accord with 
Dharmasrastra, took the title. The Gahgas of Talkad did so 
too. Over the seas, the Kaup^inya emperors of Campa (e.g. 
Bhadravarman, c. 400 A. D.) took the title. The Colas 
gloried in keeping, like Kalidasa's hero-king, to the rules of 
Manu. The drift of the evidence is one-pointed. 

What was expected from the king indicates what the 
state was competent to do. It may be gathered from the 
evils which a condition of anarchy (ardjatd) was supposed to 
generate, and which the king was to ward off. Among the 
things which disappear in anarchy, prominent mention is 
made of the worship of gods, Dharma, sacrifices and freedom. 
The discharge of the primary state-duty of protection (paript- 
lanam) ensures freedom ; but the other functions imply the 
use of directive, regulative and coercive power of the state 


in the interests of Dharma. The list should be read with 
the accounts of barbarian (mleccha) rule given by the PurSpas, 
as his characteristic was that he contravened Dharma. The 
Vi$ni4-purdna counts among the enormities perpetrated by 
the mleccha (the Indo-Bactrian and Indo-Scythian) the 
slaughter of Brahmans, women and children, killing of kine, 
greed and unjust taxation, violence, internecine war (hated 
caiva-paras-param) and omission of the rite of coronation. The 
mixture of offences against humanity, sound economy, sound 
polity and ritual should be noted. They are, in popular 
belief, the signs of Kali, the personification of Evil. Every 
king who, in medieval times, either ordered the codification of 
Dharma or did it himself, is described as freeing his kingdom 
from Kali by the service. The royal champion of Dharma 
stood not for mere morality but for religion. It is in this 
sense that the king is classed with the Brahman as the prop 
of world-order. The curious suggestion that this statement 
refers to an old rivalry between civil power and the sacer- 
dotal, which was ended by the alliance of king and priest in 
their mutual interest, is based on misconceptions, among 
which that of the division of functions between the courts of 
justice in which the judges and assessors were Brahmans, 
who declared the law and found the verdict on the evidence, 
and the executive authority which implemented the judgment, 
stands foremost. The education of a prince, on the lines 
indicated in Arthasr&stra and Smrti, for his future office would 
be possible only if the prince succeeds by hereditary right to 
an old established throne, in a small kingdom. A self- 
made ruler of a non-ksatriya caste, who builds up a large 
kingdom, will neither have had the antecedent education for 
his office, nor the inclination and facilities to get it after the 
establishment of his authority and power. He would be 


more dependent on his Brahman guides in regard to Dkarma 
than a prince educated in the old royal curriculum. His 
acceptance of traditional duty will be even more complete, 
because it will be done with less understanding and with 
more desire for popular applause. 

The atmosphere will be unsuitable for either the claim 
or the exercise of law-making by edict. Dependence for 
changes ^necessitated by altered conditions of life and time, 
will be exclusively on interpretation, involving the silent 
application of hypotheses and equity. That changes of far- 
reaching character did take place in the law (dharma) relating 
to almost every department of personal and public relationship 
is undeniable and will be illustrated later. A change, even 
one of a radical character, will not appear as revolutionary ' 
and as against Dharma, because of the belief in its eternal 
justice and its all-embracing character. Opposed positions 
will be viewed as instances of option (vikalpa), when properly 
vouched for, and will illustrate the latitude allowed by 
Dharma, when properly understood. 

It is easy to give illustrations of the changes which took 
place, and which were manifestly due to the pressure of public 
opinion and the inner promptings of what may be termed the 
4 social conscience/ The first in importance is the altered 
attitude towards the relative position of the ' sources '. The 
increasing dependence on usage (caritra), on the doctrine of 
equal validity of all texts, (ekavakyatva), on anonymous texts 
(e.g. t citations like "fti *mrtik" 9 "smrtyantare", "evamucyate"^ 
on * justice and good conscience ' (samkalpa, dtmanastufpih), 
insight and intuition (yukti) and ' the practice of the elect ' 
) f is evident, and it helped the process* Brhaspati 


accepts even the usage of castes springing from condemned 
unions (pratiloma). There was also a tendency to emphasise 
the consultation of the expert, so as to bring in professional rules 
under valid custom. The digests illustrate the change in 
attitude. Mitra Misra accepts as authority the practice of the 
' good S'&dra ' (sacchudra), apparently as a concession to the 
educated and pious member of the fourth Vartta, bringing 
the extension under ' the practice of the good ' (Scara&cawa 
sadhundm,) in the place of ' the practice of the strict Brah- 
man ' (vistacdra). The animus against the learned S'udra was 
really due to abhorrence of Jains and Buddhists for their 
abjuring the Veda and for their wholesale invitation to the 
S'fidras to desert their occupations and become monks. With 
the fall of Buddhism there was a marked reduction of acerbity 
even towards the Buddhist. 

To begin with, we may note the widening of the rules 
regarding allowable occupation and areas of habitation for the 
follower of Dhartna. It will amuse a modern student if a 
list of " excluded areas " is made. S'ankha-Likhita excluded 
Sindh and Magadha. The Mahabhdrata excluded the Punjab. 
Paithinasi included Orissa by special mention. South India was 
excluded virtually by all authorities, and the Aryan area meant 
only the western half of the present United Provinces. The 
acceptance of two principles, viz. (1) that the country is ' sacred ' 
over which the black antelope roams (kr$namrga), barely (yava) 
is cultivated, and the "kusra grass grows, and (2) that any area 
in which there is a holy place (tlrtha), or through which a 
sacred river passes, is unobjectionable, along with the defin- 
ition of &rya as he who accepts the caste-classification, 
and the Aryan land as that in which Varnasrramadharma pre- 
vails, and the application of the rule of necessity (fyad-dharma) 


to condone travelling to prohibited areas, brought the 
whole of India, and even far-off countries like Cambodia, 
Bali and Java within the ambit of permitted areas. Indian 
maritime activity and colonisation would have been impossi- 
ble, without open breach of Dharma, but for the elastic 

Next comes the principle of Yuga-dharma, * the Dharma 
of Time-cycles,' which was interpreted so as to secure a relaxa- 
tion in the interests of weaker sex or status. Under this 
principle, women and S'udras can get the same merit (punya) 
as men and Brahmans by adopting easier rites. Certain forms 
of easy literature are opened to them. 

Their non-investiture (upanayana) was to be viewed as an 
exemption and a privilege. The wife received the same power 
(adhikara) as the husband, without his samskaras, by mere fact 
of marriage. The principle that a taint was acquired by mere 
contiguity or association was attenuated till it meant only 
a lapse through the closest association or actual commission 
of an offence. The very young and the very old were ex- 
empted from many obligatory duties or expiatory rites. The 
circumstances in which impurity from contact (asprsya) will 
not arise are made more numerous. Religious cults like those 
of bhaktimdrga and tantra and the spread of monistic (A- 
dvaita) philosophy tended to extend both the area and the circle 
of recognised usage to persons and places accepting their ideas 
or produced indifference to strict conformity to prescribed 
conduct. Their influence helped to make things easier for 
women and the unregenerate castes, and to substitute faith and 
intuitive knowledge for rites of expiation, and " good works " 
and fl self-realization ' for ceremonial. But the substitution was 


not effected without struggles with the adherents of Bmrti 
(e.g., case of Vai^ava and S'aiva saints). 

In the history of the Indian law of person and property, 
there is abundant evidence of diversity of view leading to 
progress. An impulse to change the law was justified on the 
ground of conscience (dtmanastusfi) and the desire to vindicate 
Dharma. Reform in law or usage is not barred, if the move 
to change is justified on these grounds. In the field of civil 
law the main changes which follow are in the direction of the 
emancipation of the individual and his gains of learning (cf. 
the way in which the freeing of the ' earnings of the camp, 9 
castrense peculium, from patria potestas paved the way for 
individualisation of property in Roman law), the reduction in 
the number of forms of marriage to suit the new conscience 
(i.e., giving up forms like fisura, r&k$asa and gdndharva 
unions, which are but abduction, rape and seduction), the 
elaboration of the principle of adoption, and improvement in 
the civil status and rights of women. 

The care of the dependant or destitute woman was then as 
great as social problem as the unemployed today. At first she 
was a charge on her family ; next the obligation to maintain her 
was extended also to the clan or sept (kula) and ultimately to 
the state. Kautilya's recommendation of the provision of work- 
houses for women will be remembered, as well as his making 
male relations responsible for the maintenance of their help- 
less female dependants. The spirit of consideration for the 
weak, which is a feature of Dharma, is conspicuous in its 
operation on woman's rights. From mere right of maintenance 
to her right to inherit is a big advance, but it was already 
implicit in the Dharma attitude. If Apastamba could assert 


that by marriage a wife gains the right to a moiety of her 
husband's spiritual merit (t>u&y&> and to none of his sins, the 
spirit is akin to that of Brhaspati, who pleads vehemently for 
the right of the childless widow to inherit her husband's estate 
in preference to agnates : " The wife is recognised by the 
Veda, the Smrti, the world and men of integrity and virtue as 
half the husband's person, and his partner in spiritual benefit. 
The death of the husband destroys only one-half of his person ; 
the other, half survives in the widow. So long as she lives, 
how can any other person take the dead man's estate ? " 
The right of the unmarried daughter to the expenses of her 
marriage was secured. In times of commotion, the weak 
require protection more than the strong. To a grown-up and 
fatherless woman, a husband is the natural protector. Marriage 
becomes an obligation to women, and is treated as a sacrament* 
It is invested with further attractions. The reaction against 
Buddhism and Jainism led to an emphasis on marriage, 
apart from questions of economic statemanship advocating 
population to make up the wastage of man -power in war, as 
these religions admitted women as nuns. But it is not neces- 
sary to cite Buddhist influence (as done by Dr. Jayaswal) to 
explain the recognition of the spiritual equality of the sexes in 
Hindu Dharma. It was there already. The indissolubility of 
the marriage tie, in later law, cancelling the older permission for 
separation and divorce, is perhaps due to the fear of the en* 
croachment of Buddhism on the family, by attracting wives to 
nunneries. The emphatic condemnation of prolonged celibacy 
and the advocacy of the house-holder's status, may be due to 
the reaction against a glorification of renunciation ($amny&sa) 
for women as well as for men. The medieval Hindu revivals, 
sanctifying pious works, are responsible for the attempts in 
digests (e.g., Smfticandrikd and Vyavaharamayukha) to extend 


the widow's powers of alienation of property in which she had 
only a life-interest. When divorce had been universally denied 
to high-cast women, it was permitted, (as Kautflya did it) to 
Non-brahmanas ; it was saved for the fourth caste, by Kamala- 
kara. The marriage of widows, is similarly limited, and then 
denied. Even virgin widows, to whom leniency had been 
formerly shown, cannot now remarry, for Devappa Bhafta and 
Madhavacarya explain away Paras'ara's permission as barred by 
the inhibitions of the Kali age (kalivarjya). The time when 
a .' defender of the faith ' like Candragupta II married, like 
Henry VIII, his brother's widow, without outraging orthodox 
sentiment, was forgotten. The gradual reduction of the 
levirate (niyoga), from permission to raise many off-spring to 
the raising^of only one son to carry on the line, and then to posi* 
tive prohibition, apparently on grounds of abuse by temptation 
springing from sex-impulse of the desire to retain property 
(definitely condemned by Vasi?tha), till its disappearance 
after the sixth century A.D., are to be noted on the debit side. 
But there is positive gain in two directions. Hypergamous 
unions (asavarn&vivdha) are prohibited as Kalivarjya, and the 
inhibition was a discouragement of polygamy, already falling 
through public opinion into desuetude, except in royal families. 
The growth of orthodox opposition to self-immolation of the 
widow (sahamarana) was a second gain. Not only did an old 
jurist like Vi?pu commend Sati, but there is Greek evidence, for 
its practice. The citation of Vedic authority for it, as for ano- 
ther famous exception to the rule against suicide (dtmahatyfi), 
is explained away by Medh&tithi as analogous to that of 
black magic, which though found in a Veda, is still unaccept- 
able to the good, and by Devaijna Bhatfa as an inferior 
Dharma. Baiia naturally denounced it. Tantric influence, 
which ennobled woman's body, went also against it. 


It was interdicted to expectant mothers and to Brahman 
women. The later attempts to annul the prohibition (as 
by MadhavScarya and the Bhatfas) is a reaction due to the 
same aristocratic feeling which made it survive in Raj pu tana, 
and which led to holocausts like those of Gangeyadeva 
(d. 1041), who was burnt with his hundred wives, or similar 
horrors in later Rajput and Sikh history. As an institution 
Sati was doomed long before it was legally prohibited in the 
19th century. 

In two respects there was hardening of the old rules : viz., 
the readmission to caste privileges of apostates who desired 
reconversion, and the rehabilitation of the abducted or ravished 
woman. As regards the latter, there had been a general 
safeguard against the offences in the Hindu epochs in the law 
prohibiting the enslavement and ravishing of even slave women 
by their owners, and of wet-nurses by their employers (KatyS- 
yana). The abduction of women of respectable families was a 
graver crime, and the offence was punished with death, (Vasi- 
tha). The offender was included under a special class of crimi- 
nals (atatayinah) who could be slain by any one when caught 
in delict o. Unchastity in a wife did not entail the forfeiture 
of a right to maintenance, and there were easy penances for the 
offence. The case of one who had been abducted and forced 
into conjugal relationship or into an alien religion was ostensi- 
bly stronger. Vasistha, Atri and Paras'ara allow women to be 
reinstated in such cases after undergoing purificatory rites. 
Opinion was divided on the question of the readmissibility of a 
woman who had conceived during abduction, but Devala dec- 
lared that she should be taken back after she gave birth to the 
child, which was to be separated from the mother to avoid caste- 
mixture (varnasamkara). Vijnanes'vara, who is later than 


Devala, and lived at the beginning of the period of Musalmaa 
occupation, will not admit her to full rights, but will give her 
only a locus pcnitentiae in her husband's house. Her treatment 
becomes ungenerous during the period of Musalman rule, 
when it should have been otherwise. The rigor was 
extended to ordinary unchastity in woman, which was 
naturally worse, being voluntary. (Caturvimaratimata ; Apa- 
rarka). This attitude shocked Al Beruni. A man who 
had been taken a prisoner of war and converged to a 
mleccha religion, and had even associated with mleccha 
women, might be taken back after purificatory rites, according 
to Devala. Cases of even persons who had willingly gone 
over to the mleccha side were to be considered with sympathy. 
This was in harmony with the old Vedic rule for the admission 
of the vrdtya to Aryan privileges after a ceremony called 
vr&tya-stoma had been performed. Who are Vrdtyas ? The 
conventional explanation was that persons born in the three 
higher castes who had neglected to undergo upanayana, or to 
perform Savitrl were Vratyas. A recent writer has made out 
that the original Vrdtyas were a powerful civilised community 
in Eastern India. The common tendency was to equate 
Vrdtyas, Mleccha and Yavana. Vasistha, Manu and Yajnaval- 
kya had forbidden association with them, intermarriage with 
them and their admission to Vedic instruction and to religious 
rites. But they could be purified by Vrfttyastoma or by the 
performance of the Aswatnedha (Vasitha). The performance 
of the horse-sacrifice by so many kings of dubious caste in the 
44 dark-ages " of our history might probably have been due to this 
helpful rule* The abduction of women and men, or their being 
carried into slavery as prisoners of war, must have been an ordi- 
nary incident in the Muhammadan epoch. Why should the 
attitude be stiffened against the rehabilitation of unfortunate 


men and women, when their number waa 96 large? Two 
reasons may be suggested : firstly, vehole-sale ttadmissfon was 
viewed differently from isolated cases of readmisrion, because 
of the fear of society being swamped by such large-scale recon- 
version ; secondly, the fear of retaliation, directed both against 
the reconverted persons and against those who made the re* 
conversion. When the power of reprisal was in the hands of 
a distant enemy it was negligible. But when it lay in men 
ruling the country, and their religion made apostasy a 
capital offence, it was to be dreaded. It is noteworthy that 
S'iv&ji readmitted to the Hindu fold his general (Sarnobat) 
Netaji Palkar, who for ten years was a Muslim in Afghanistan 
and had even married a Musalman lady, after being carried 
away and forcibly converted to Islam. One of the Nirnbalkars 
had become a Muhammadan. S'ivftji had him taken back and 
even gave him a daughter in marriage. But when it came to 
his own case, S'ivaji, would take no risks, and conciliated public 
opinion. He cheerfully underwent expiatory ceremonies as a 
vr&tya, then had his rite of initiation, long intermitted in his 
family, and was crowned as a Ksatriya king only after these 
ceremonies had been gone through. 

Enough has been said to show the wide-spread feeling 
in heads of society that social well-being depended on the 
maintenance, in its purity, of traditional rules, and that the 
extension of such rules to meet new situations had first to be 
sanctioned by interpretation made in strict conformity with 
the prescribed rules and methods of investigation. To a ruler 
the part of the science of Dharma, which was of the most 
concern was the general part, and not that section, labelled 
Rdjadharma, which laid down the special duties of his station. 
Acara, purification, gifts, and propitiation were directly 


relevant to his conception of the duties of his office as King. 
This is why so many treatises on branches, which are so 
different from what is popularly regarded as politics, were 
written either by kings, like Ballalasena, or at the instance of 
kings, like Hemadri's Caturvargacintamani or Jayasimha- 
kalpadruma. We may think that an Indian Raja would have 
been attracted by what we feel attracted to, viz. Rajaniti, be* 
cause it relates to polity. But, we should look at it from his 
standpoint. In an orthodox palace atmosphere, *a prince 
will imbibe knowledge of the special duties of his future 
office (kingship) almost with his breath. He will not look for 
much inspiration or new knowledge of even court etiquette 
from books written by priests or pandits. He would feel 
differently towards civil law, and the different departments of 
activity with which the remaining sections of Dharmaydstra 
dealt. This attitude will explain two puzzling features of our 
Dharma and NUi literature : viz. (1) the large non-nUi and won- 
vyavahara content of Nibandhas written to order ; and (2) the 
fewness, insipidity and unattractiveness of the special treatises 
on Rajadharma or RajanUi, particularly when viewed in 
comparison with their most opulent rival. Among works on 
Artha&astra, the only one written by a first-rate statesman 
was the Kautiliya-Arthasastra ; the others were written by 
pandits, or composed by parujits and fathered on kings (e.g. 
Yuktikalpataru of King Bhoja, and Manasolldsa of King 
Somes'vara of Kalyana). The baffling Sukraniti is an ex- 
ception, but its composite character, uncertain age and origin, 
and mixture of archaism in diction and doctrine with startling 
modern views, raise special problems of their own. Kamandaka, 
Somadeva and Hemacandra were poets as well as pantjits. 
They wrote literary excercises, and aimed at pleasing, and not 
at contributions to political science. In the same way, the 


handbooks on Rajadharma, in the restricted sense, with two 
exceptions, were composed by pancjits : e.g. R&jadharma* 
prakaya of Mitramis'ra, Rdjanltimayukha of Nllakaptha, and 
Rdjadharmakaustubha of Anantadeva. 

The two exceptions to the unattractiveness of the narrower 
Rdjadharma literature are: (1) the Rdjadharma-'kanda of 
the Krtyakalpataru and (2) the Rdjanitiratndkara of Cages'- 
vara. The latter has been printed by Dr. K. P. Jayaswal 
and Dr. A. Bannerji Shastri and has recently passed into a 
second edition. The former is being edited by me, and will 
soon be published. Laksmldhara's work is of importance from 
several standpoints. He was not only a great and austere 
Brahman, but he belonged to a family in which high office had 
descended from father to son. The highest office of his day 
was that of Mahdsandhivigrahika, a combination of the 
cabinet duties of the modern ministers of war, foreign affairs, 
and home affairs. Laksmldhara's father Hrdayadhara held 
the office also in the Gaharwar court. Laksmidhara mentions 
the admiration which his mastery of law and fact evoked, when 
he ' summed up ' as chief judge (pradvivdka) , and bis finesse as 
a minister. Apparently, he passed through the lower appoint* 
ments before attaining the high office which he held when 
he wrote the Krtyakalpataru and for which he had to 
wait till his father vacated it. He was thus a grandee, an 
inference which is confirmed by his allusion to his many 
gifts to Brahmans and temples. He represented the flower 
of the Brahman official hierarchy in his age, unlike his two 
great contemporaries. Vijnanesvara was not an administrator, 
and Apararka was not a Brahman and had also not seen affairs 
with an intimacy which only a minister can obtain. Carles'- 
vara, who came nearly two centuries after Laksmidhara, is 


in hiftny respects to " bftdtr-study " tb L&k?itt!dhUr*, ffdftt 
Whom be borrows extensively. He too wfcs a noblerttafc 
(Thakur), a judge and a minister, as Well as a scholar, and writer. 
But be was not a svotfiyct like his model, and be served id 
a small kingdom, unlike Laksmldhara who served one of the 
powerful rulers of the time, Govindacandra of Kanauj (A D. 
1104-1154), Who, in the length of his reign, the extent of his 
territory, proWess as a soldier, and distinction as an adminis- 
trator, vied with his elder contemporaries in the Dakhan and 
South India, Vikramaditya VI and Kulottunga I. We might 
justly expect from these two writers a combination of learning 
atid experience irt dealing with R&jadharma, in its narrower 
sense, which cannot be looked for in treatises of Mitramidra, 
Nflakantha and Anantadeva. Mitramisra does Hot also need 
extended consideration, since he has borrowed whole- sale from 
Laksmldhara in the most unblushing way. 

To take the latter first. Nilakantha's Nitithayfikha does 
riot cite Laksmidhara, and is unlike the Kalpatam, from which 
he does not borrow in this section of his Bhagavanta Bhdskafa. 
It is a jejune compilation unworthy of its author's reputation, 
and seems to have been put together simply to round off the 
digest. It borrows its treatment of policy wholesale from 
Kimandaka, the sections on omens and prognostications from 
Varahamihira, and the section on War from both, besides using 
PurShic literature to some extent. There is no sense of reality 
behind his statements. His patron was a mere nobleman, and 
Nllakantha himself had no political training. The only topics 
on which he shows some Animation are (1) the discussibn 
whether a non-ksatriya can be ctowned in the did way, a 
point which he tacitly answers in the affirmative by furnishing 
a long account of the porotmtion ceremony, with extracts frdft 

Aitarey* frrahmana* and, (2) the consideration of th$ rule 
a Brahman might be killed in self-defence. Nllakantiut 
takes the view that motive is insufficient, and that the Brahman 
must actually attempt murder, before he can be killed. He 
advocates the use of kufa-yuddha t or improper war in certain 
circumstances, a concession to the lowered moral siandar4 
of the day. 

Anaatadeva's book virtually exhausts itself in three large 
divisions : architecture, following the iqjunction that the king 
should have forts ; a treatment of civil and criminal law in their 
eighteen titles, showing little depth or originality ; and a long 
account of the coronation ceremonies, with a description of 
the ritual and the mantras to be used on the occasion. The 
Jbook was probably a manual for a small court like that of his 
patron Baja Bahadur Candra of Almora (d. 1678). His special 
individuality appears only in the following. He recognises a 
polygamous king, with a chief queen for ceremonial purposes, 
and the possibility of competition to the succession, from the 
existence of many sons by different mothers. He recommends 
primogeniture. The cabinet be envisages is a small one and 
consists of the Minister, the Chief Priest, the Chief Cook and 
(the Astrologer. He attaches importance to the ceremony ef 
coronation and rules that the title of King should be taken 
only after coronation. It is noteworthy that S'ivaji, from 
whose dominions Anantadeva's family came, followed thifi 
precept, and the official form of dating his reign begins after 
bis coronation in 1674 ; though he had taken the title of Rajft 
and declared his independence tea years earlier .(1664). 

Mitramim's book is redeemed by two features: its 
comprehensiveness, due largely to his absorption of virtually 


the greater part of the work of Laktmdhara ; and his great 
learning, which enables him to add corroboration to what is 
given in his original. His patron Birsingh was given con- 
siderable freedom by Jahangir, and used his influence with 
the emperor to strengthen Hinduism. He was more than a 
petty ruler. It is possible that Mitramisra's book might 
have been designed for the guidance of the small kingdom, 
but the probability is that both the scholar and patron looked 
for a wider audience. The elaborate description of*the coro- 
nation of S'ivaji, which we find in the Citnis Bakhar is 
almost word for word in accord with the rules laid down 
by Mitramis'ra, following Laksmldhara, for the coronation 
of a king. Gaga Bhafta (ViS'ves'vara Bhatfa) who officiated 
as chief priest at the coronation, and received a lakh as 
his fee (dak?ind) must have followed Mitramis'ra closely. 
It is also possible that Sawai Jaisingh of Amber, the 
soldier-astronomer, who performed an asrvamedha and under- 
went a coronation in accordance with Hindu rites, followed 
this work. Mitramis'ra is a man of affairs, but still a man 
of his age. He discusses the question whether a ruler should 
be a katriya only or a consecrated katriya, and affirms 
the second alternative. His doctrines are strictly in accord 
with Dharmasastra. He advocates primogeniture and will 
not allow partition of a kingdom. His vigilance for the royal 
fisc is shown by an interpretation of the old rule that the king 
should make good property lost by theft, to the effect that the 
liability to the state will not arise where the loss is due to 
the carelessness of the owner. He shows some originality 
in the discussion of the theory of Mantfala, disagreeing with 
Kamandaka in some respects, but it is all mere theory, as in 
the days of Akbar and Jahangir, there was no scope for foreign 
policy for a subject Raja. The Brahmapa is permitted to light 


in certain emergencies. The duties of the conqueror vis-a-vis 
the conquered are in accord with tradition and high ethics, and 
derive some animation from the circumstance that a Hindu 
prince under the Mughal empire was in the position of a con* 
quered ruler, and that the plea for generous treatment was part 
of the claim of the surviving Hindu Rajas, whom the Mughal 
administrators treated as Zamindars. 

Cantjes'vara's Rajanltiratnakara was the work of an 
octogenarian. It has many points of originality. He hardly 
uses the work of Lakmidhara, from whom he borrows wholesale 
in his other works ; for, in spite of an acknowledgment of his 
obligation to the older writer, Candes'vara does not follow him 
either as regards his arrangement of topics, or his doctrine. 
He omits the treatment of various ceremonies prescribed by 
Lakmidhara and other later writers for the propitiation of 
unseen powers. His work is more like the political testament 
of an old statesman, recording his opinion for the benefit of 
posterity. His own king was a Brahman and he himself was a 
Thakur. So, he rules that kings might be of any caste. He 
ignores the coronation ceremony, and attaches no special 
constitutional value to it. He recognises de facto sovereignty, 
and admits the legitimacy of the conqueror. To impress on 
the king his very limited scope for capricious action, he argues 
that the state is a society of all persons concerned, including 
the halt, the maimed, the helpless, and orphans, and that their 
interests will be sacrificed in a division of a kingdom. He 
thus just misses anticipating Burke's famous definition. He 
is by no means for royal absolutism, or for breach of Dharma 
by the king. No man of his age could be. He cites the 
famous text (anonymous) about the divine character of the 
people, as a set-off to the theory of the divinity of the king. 


Though brief, Cantfes'vara's book displays originality, 
ftl*d unconventionally. It was an after-thought, as be h4 
completed his sketch of Dharmaffdstra in seven books, without 
the need tp write specially of king-craft. He would probably 
not have written even this tract but for the importunity of his 
sovereign, Bhaves'a. 

It only remains to describe the Rajadharma-Tcalpataru, 
which may be taken as the locus classicus of this type of 
literature, regarded whether by itself or in its relation 
to other parts of Dharma in the wider sense. Laksml- 
dhara's work is in 1^4. books. His omission of vyavahdra in 
(he treatment of Rajadharma is part of an outlook which 
treated all parts of Dharma as Rajadharma. Its omission 
io Kfimandaka or Manasollasa will be defect, unless the 
works are viewed as popular supplements to Dharma, devoid of 
any authority. One feature in Lakmidhara is note-worthy. 
He will not cite any authority that is not recognised as a 
source of Dharma. He follows in the arrangement of his 
quotations the order of enumeration of the sources : yruti, 
smpti, itihasa, purdna and caritra. He assumes a good deal, 
of what he has said in other sections of his digest. To 
compile a work on polity by Laksmidhara one would have 
to lay under contribution several sections of his digest ; it 
cannot be written from his 4 Rajadharma ' alone. Lakjmf * 
dbftra held the responsible position of chief minister to a 
king, whpse power was daily growing, and yet who had to 
be educated in Hindu Dharma. It is therefore natural that, 
#s in Kauttfya's work, he should feel the need to deal with 
the problems of philosophy and religion, along with adminw* 
organization, recruitment tp the king's service, court 
(important in a new 4yn*gty, without 

Ad Well as economic development of a Urge area, just recover- 
ing from war, along with traditional treatment of the rules 
of taxation and economy, and the beneficial relations of the 
raler and the ruled. His special " advance " on the Kaufiliya 
is his elaboration of the magical and ceremonial rites recom* 
ftiended for the safety of king and kingdom. His reticence 
about foreign relations of the king is noteworthy, but the 
omission of the Mandate theory is apparently the caution of 
the political minister, who will not give himself away. The 
GSharwar king must have been proud of his ksatriya lineage, 
which was questioned. It is proof of Laksmidhara's inde< 
pendence that the rites which he prescribes for the corona- 
tion of even a Rajput king are PuSnic and not Vedic. In 
this respect he is more consistent than his successors, who 
indiscriminately mixed up the two, for kings whose claim to be 
kcfatriyas was even more questionable than Govindacandra's* 
His magnifying the Brahman is consistent with himself and 
the tradition of the age. In one respect, he strikes an original 
note. While he will not countenance the use of deception or 
barbarism in war, he regards it as a game which should be 
short and sharp ; and he accordingly recommends that the 
civil population of the enemy should enjoy no immunity from 
attack or destruction of property, as the aim of war is to put 
the maximum amount of pressure on the enemy and bring 
him to his keens quickly. He accordingly advises the laying 
waste of the enemy's territory, and the destruction of the 
enemy's buildings, water reservoirs, and bridges. But, once 
an enemy is overcome, the enemy Subjects should receive the 
same considerate treatment as the subjects of the conqueror. 
Private looting is forbidden in war, and all booty belongs to 
the king. In civil government, the main principles of 
kak^midhara are economy* avoidance of w^Bte, conservation of 


resources and respect for the expert. Its modern-ness is what 
one would expect from a responsible and gifted statesman 
with great experience in governing a large kingdom. That 
the man of affairs was also a great Brahman was in con* 
formity with a tradition, which refused to divide the functions 
of life, or accept any suggestion which would view mundane 
existence as the only one. 

A result of the revived interest in legal texts aqd Artha- 
ydstra in recent years has been a partial redemption of the 
reputation of Indians for realism and progressive instincts. 
But there still lurks a belief that religion and Dharmayastra 
strangled the free growth of legal and political institutions, 
made for inelasticity, and rendered society unable and unfit to 
readjust itself to changing conditions and needs. The claim 
of the old Indian norm (Dharma) to be viewed as eternal, 
infallible and indisputable has been represented as a confession 
of the want of both the desire and the capacity to move 
forward. Evidence of such adjustments must force itself on 
the notice of students of our social history and institutions. 
It will show that, inspite of the fossilising effect of the 
norm, the liberal use of fictions enabled some readjustment to 
be effected. The entire area of a vast literature, which was 
the creation of religious fervour and an overpowering sense 
of duty in centuries of kings and thinkers, cannot be sum- 
marily condemned as the dismal outpourings of minds in 
fetters to priest-craft and superstition. Explanations, so facile 
and so appropriate in a superficial consideration of fragments 
of a great literature, cannot explain the continued vitality 
of the culture, and the religious beliefs on which it was 
based, through centuries of vicissitudes, like foreign invasions, 
conquest, and wholesale persecution, the like of which 


has extinguished civilization in other lands. That a fre- 
quently ravaged society was able to maintain its essential 
unity and cherished ideals and modes of life, through such 
calamities and through such a long stretch of time, adapting 
itself, within the limits of its fundamental beliefs, to the 
calls of altered needs, and that it ensured to its members 
a considerable degree of happiness and freedom, with the 
temper to make use of them, are claims which may be urged 
on behalf* of the great body of tradition and literature called 
Dharmasr&stra. That a study of its scope, aims and implica- 
tions, along with that of the ways in which it renewed itself 
from age to age, may prove of use not only to those who 
accept it without question, but even to those who ardently 
wish for social change in the interests of wider well-being, 
among a vast population in which a great many persons have 
still the faith in it which will help them more readily to 
accept change if it is in consonance with tried ideals and 
methods, is the justification for the review which has been 
attempted in these lectures of what, from its vital bearing on 
the prosperity of the land, I have, consistently with tradition, 
to all Rdjadharma, 


[The figures at the bead of the Notes refer to the pages and 
lines of the text of the lectures, while the figures on the top of 
Notes refer to the serial numbers of the Notes, which are given 
for convenience of cross-reference.] 



The first Chair on the subject was founded by the late Mahft- 
rftja Manlndracandra Nandi of Cossimbazar. Recently, H. H. the 
MahSraja of Baroda has given the University a perpetual grant for 
the foundation of a Professorship in Ancient Indian Culture and 
some Fellowships. At Benares candidates can study the subject 
in all its ramifications from the pass B.A. course to the M.A. and 
D. Litt. degrees. 


The convention which was set up when the Chair at Madras 
University was first filled has been maintained with the widening 
activities of the Department of Indian History. Research more 
than teaching forms the chief occupation of the staff. 

3,12. 1546 

At Bombay the School of Sociology has produced some useful 
doctoral theses on Indian Polity and Sociology, marked by scholar* 

ship and insight. 


4, line 23. RAjABHARMA 

The term RQjadharma is now popularly used in the sense of 
or Rajanlti. It has been so especially since the study of 


Ancient Polity was stimulated, if not actually commenced, by tbe 
publication in 1909 of Kaufrlya's ArthavSstra and its translation 
into English. Lawyers have all along been pre-occupied, since the 
foundation of British Courts of justice in India, with that part of 
Vyavahara which deals with inheritance and partition of heritage 
(Dayabhftga). There has been a belief, which is not justified by 
Indian tradition, that, as the Hindu king was invested with the duty 
of adjudicating suits of law, the Vyavahftra content of Dhartna- 
S'&stra, and the special rules for the kings and courts alone consti- 
tute Rajadharma. The chief purpose of these lectures is to correct 
the impressions, to show that they are not in consonance with the 
traditional view of Hindu life or institutions, and to draw attention 
to the wider implications of the term. 


Ancient Indian Polity was published in 1914, and a second 
edition appeared in 1934. Ancient Indian Economic Thought 
appeared at Benares in 1935. The Calcutta Readership lectures 
were named Indian Cameralism, from striking points of resem- 
blance with European Cameralism and the Arthas'ftstra. Though 
delivered in 1934, it has yet to be published. 


Half in fun and half seriously, European administrators have 
cited the precepts of Kautilya in legislative debates in support of 
new taxes and the Criminal Intelligence Department. 


The Gyhya-sGtras, which form part of the Dharmavastra, have 
been characterised by a hostile critic as ' not only twaddle, but priestly 


twaddle.' Many of the misconceptions of the nature and content of 
DharmayZstra may be traced to the criticisms of Sir Henry Maine, 
made on the basis of the translation of Manuantfti by Sir William 
Jones, and in ignorance of Sanskrit, and almost a contempt for it. 

Some illustrative passages may be cited : 

" The religious oligarchies of Asia, either for their own guid- 
ance, or for the relief of their memory, or for the instruction of 
their disciples, seem in all cases to have ultimately embodied their 
legal learning in a code ; but the opportunity for increasing and 
consolidating their influence was probably too tempting to be re* 
sisted. Their complete monopoly of legal knowledge appears to 
have enabled them to put off on the world, not so much of the rules 
actually observed as of the rules which the priestly order considered 
proper to be observed. The Hindoo Code, called the Laws of 
Manu, which is certainly a Brahman compilation, undoubtedly 
enshrines many genuine observances of the Hindoo race, but the 
opinion of the best contemporary orientalists is, that it does not, as 
a whole represent a set of rules actually administered in Hindustan. 
It is, in great part, an ideal picture of that which, in the view of 
the Brahmins, ought to be the law. It is consistent with human 
nature and with the special motives of their authors that Codes 
like that of Manu should pretend to the highest antiquity and claim 
to have emanated in their present form from the Deity. Manu, 
according to Hindoo mythology, is an emanation from the Supreme 
God ; but the compilation which bears his name, though its exact 
date is not easily discovered, is, in point of the relative progress of 
Hindoo jurisprudence, a recent production. 11 (Ancient Law, ed. 
Pollock, 1927, pp. 15-16. The work was published in 1861). 

" Hindoo law, which 1 have placed by the side of Roman law, 
calls assuredly for no euology. It is full of monstrous iniquities, 
and has been perverted in all directions by priestly influence. But 
then a great deal of it is of prodigious antiquity, and, what is more 
important, we can see this ancient law in operation before our eyes. 
British legislation has corrected some of its excesses, but its 


principles are untouched, and are still left to produce some of their 
results." (Early History of Institutions, 1874, p. 309). 



In Manusmfii only three books, viz. the seventh, eighth and 
the ninth treat of politics and law proper, and take up about 980 
verses against 1580 for the rest. In Yajftav alky asm fii, the last 
(i.e. 13th adhikarana) of the first book, and the whole of the second 
deal with polity and law, and take up 367 verses out of the total 
1009. In the reconstructed Brhaspati-smfti, I have gathered 1288 
verses (including some half -aflokas) on law and and polity, as against 
1037 on the rest of the normal content of Dharma&astra. As 
Br/haspati's work concentrates on Vyavahara, the large content of 
non- vyavahara element in it is noteworthy. Paras'arasmrti, as is 
well known, has no Vyavahara or Rajadharnta content, while the 
extant Naradsmfti is equally exceptional in having virtually only a 
vyavahara element, which is noticeably very small in the Dharma- 
stitra literature, being relatively most abundant, while still relat- 
ively smaller than the non-vyavahara element in Vi$nusmrti the 
only smrti in sttira form which has relatively a large vyavahara 

If we turn to the nibandhakSras, we find that only two out of 
the fourteen books of the Kalpataru of Lakgmldhara are devoted to 
Rajanlti and Vyavahara. JImutavahana's Dayabhaga was exclu- 
^sively devoted to a part of vyavahara, as his Vyavahara-matfka 
was also, but he recognised the value of the non-vyavahfira element 
by writing a much larger work on Kalanirnaya, (i.e. the Kalaviveka, 
Bibliotheca Indica, 1905)* His lost Dharmaratna, of which both 
the KcUavivtka and the Dayabhaga are declared in their colophons 
to be parts, will if recovered furnish another illustration of the 
principle enunciated < (Kane, History of Dharmasrastra> p. 319). 
Of the twenty-eight tattvu* of Raghunandana only two (ft*, qn 


dfiya and vyavahtlra) bear on law proper. Every large and 
complete digest will furnish similar instances. 

8, II. 28-30. HALHED'S CODE 

The original of N. B. Halhed's Gentoo Code, published in 1776, 
was a Persian translation of the Vivftdaryavasetu (Bridge over 
the Ocean of Litigation) which was composed by a committee of 
smartas named in the following sfloka, which appears at the end ol 
the printed edition of the work : 

Bales'vara-Krparatna-Sama'Gopala-Krwajlvanakhyaih I 

Sadbhih It 

K3las'ankara-&yatnasundra-Krsnakes'ava-samgaib I 
Sttaramasangaisca kfto grant hah sphuratu sabhftyatn II 

There is no mention of the Maharaja Ran jit Singh of Lahore, to 
whose inspiration the publisher attributed this work. The Oriental 
Manuscripts Library at Madras has a copy of this work with the 
title Vivadarnava-bhaHjana. It should not be confused with 
Jagannatba's famous digest, which H. T. Colebrooke translated in 
1798. The title of the latter, which is still unpublished, is VivSda- 


This famous work, which has been extensively used by the 
British courts was published first in 1797 by H. T. Colebrooke. It 
is a translation of the sections on contract and succession of a digest 
specially composed by JagannStha TarkapaficSnana of Triveni on 
the Ganges in 1796. Jagann&tha is the last great nibandhakSra. 
He is said to have died at the great age of HI in 1806. If it be so, 
be must have been a centenarian when the digest was composed, a 


truly remarkable achievement. (B. Baner jee, Dawn of New India, 
1927, pp. 81-91), 



Sir William Jones translated Manusmrti following KullCka's 
commentary, and an edition was published in 1796, after his death. 
He was responsible for the suggestion to undertake a comprehensive 
digest, and the Vivadasararqava of Trivedi Sarvoruaferman was 
composed accordingly in 1789. Meantime, the VivSdarnavasetu 
had been compiled in 1773, and was the original of Halhed's Code 
of Gent oo Laws, 1776, published in 1781. Jagannatha's nibandha 
was partially translated as ' Digest of Hindu Law ' by T. E. Cole- 
brooke, in 1797. Colebrooke published in 1810 his translations of 
Jlmutavahana's Dayabhaga and the DayabhZga section of the 
MitakfarQ. Borradaile's translation of the VyavaharatnayHkha 
appeared in 1827. The Dayakramasamgraha was translated by 
P. M. Wynch in 1818. It was by Sfa Krna TarkSlankara, and 
an edition of it was published in 1828. The Dattaka-mlmathsU of 
Nandapaijcjita and the Dattaka-candrika of Kubera was published 
by J. C. C. Sutherland in 1821. Sir Thomas Strange published his 
Hindu Law in 1825. In 1829 appeared Sir William Hay 
Macnaghten's ' Principles and Precedents of Hindu Law ' in the 
same year as his father Sir Francis Macnaghten's Considerations 
on Hindu Law. Goldstucker wrote his Present Administration 
of Hindu Law 9 in 1871. Meantime, A. C. Burnell had published 
a translation of the DayabhUga section of MSdhava's bhjfsya on 
ParZs'arasmrti in 1868, which he followed up by a translation of 
the same section of Varadaraja's Vyavaharanirnaya, which I am 
about to publish for the first time. VScaspati Misfra's Vivada- 
cintnmani was translated in 1865 by P. C. Tagore, and the sections 
on inheritance in the StnfticandrikS were translated by T. Krishna* 
swami Aiyar in 1867. In 1868 Prosopng Coomar T&ore left by 


will the funds for the foundation of the famous Tagore Law 
Professorship in the University of Calcutta, and H. Cowell gave in 
1870 the first course of lectures under this foundation* and chose 
Hindu Law as his subject. 



The colophon to the Dayabhaga, the most famous work of 
Jimtitavaliana, ends thus " Dharmaratne Dayabhagah samaptah " 
The same reference to Dharmaratna occurs in the colophon to his 
Kalaviveka (Bibhotheca Indica, 1905). The last words in the 
Kalaviveka " Sam apt am cedam BhQratne Dharmaratnam >f will 
indicate that this section was the last in the Dharmaratna. The 
complimentary verse at the end of the section refers to the bigger 
work and its occurence at the end of Kalaviveka will also suggest 
that the Dharmaratna terminated with the section of Kola : 

Bahuvidha-vivada-ttmiragrastaw grahanam 

S'a&ankasya ' 
Tad-dharmaratnadlpalokat sakalam vilokayata H 

His Vyavaharamatfka, which was published by Sir Asutosh 
Mookerjee in 1912, does not show this reference to Dharmaratna 
in the colophon, which ends thus : 

Iti Paribhadra Mahamahopadhyaya Sri Jlmptavahana- 
krta Vyavahdramdtrka samdptU. It is possible that the 
other sections of the Dharmaratna were never written, though 



The reason given by MadhavScarya for selecting Para&ara- 
for comment is that Pargtfara's work was the most 


rtsplendant among nmfti (S r mr*t-iu$aw5-ar3r<*ra)!0 and it was 
not commented on by any previous writer : 

ParaS'arasmftth piirvair na vyakhy&ta 

MayBto Madhavaryena tad-vy&khy&yam pray aty ate. H 

As this smfti does not treat of K&la, just as it did not treat of 
vyavahSra and rdjadhartna, MSdhava seems to have felt the need 
to write a separate treatise on kala, as he could not fasten one on a 
verse in the original, as he did bis disquisition on law and govern- 
ment. His action shows how he felt that the treatment of these 
topics, which were omitted by Parfts'ara, were needed to round off 
the nibandha, 



The connection between sin and crime is shown by the view 
that they are identical, every crime being an offence against God 
and therefore a sin, and every sin, in primitive society atleast, being 
an offence against the order established along with the state, and 
therefore punishable by the state. Sir Henry Maine pointed out in 
1861 (Ancient Law, ed. Pollock, p. 381) that primitive jurispru- 
dence knows both sins and torts. " Of the Teutonic codes, it is 
almost unnecessary to make this assertion} because those codes in 
the form in which we have received them, ware compiled or recast 
by Christian legislators. But it is also true that non-Christian 
bodies of archaic law entail penal consequences on certain classes 
of acts, and on certain classes of omissions, as being violation of 
divine descriptions and commands." The sinful'nature of crimes was 
known to Europe, and is shown by the post- mortuary punishments 
for some classes of crime, like violent robbery, and suicide, by 
refusal of Christian burial. The Church's refusal of absolution for 
certain offences is noteworthy, 


The relation between spiritual and worldly punishments is 
explained at some length by J. Jolly, Hindu Law and Custom, 
pp. 250-270. It is worth studying. Visnusmfli, 33-42, gives an 
elaborate catalogue of sins (pataka), which the king should punish 
(t*6. pp. 250-252.) For an offence there is expiation in two ways, 
by undergoing punishment at the hands of the king, as punishment 
purifies (Manusmrti, VIII, 318) and by performing the prescribed 
penances, except in cases for which no penance can be prescribed, 
owing to their moral gravity. Expulsion from society (tyaga) 
corresponds to excommunication, i.e. out-casting. " In all the 
smftis an elaborate admixture of spiritual and worldly punishments 
is in evidence." (ib. p. 263) Penance as well as punishment was 
prescribed for almost all crimes, (ib. pp. 267-268.) It should be 
noted that the power of the king as the wielder of the ' rod of 
punishment ' and of the community in arranging for read mission 
after penance, meant a capacity, by refusal of penance or punish* 
ment, to make the culpability continue in future lives, i.e. after 
death. A careful calculation of the effects of a punishment of 
this combined nature in the case of apparently preferentially treated 
persons, like Brahmanas, might show that what appears, in a 
sceptical age as immunity or special consideration, is in reality a 
relatively heavy load for the class of apparently exempted offenders* 



" Kautilya believes in the immunities of B rah mans in several 
matters, frees them generally from corporal punishment, only 
providing that they be branded, or imprisoned in cases of serious 
Crime, exempts their property from escheat and from forced contri- 
butions, and even provides for their receiving substantial largesses 
from the King, in cases where an innocent man has been punished. 
In these, he is like Manu, though he does not go to the lengths 
to which Manu would proceed in giving such privileges and 
immunities. But, Kautilya would apparently not except even 


Brahmans from the law against suicide, while, in cases of their 
committing treason he would have them drowned, and he would also 
allow the Brahman to be killed on the battlefield or in self-defence " 
(Ancient Indian Polity, pp. 33-34. In II, i of the Arthavastra fines 
are prescribed to those, who, though able to do so, do not support 
(a-bibhratah s'aktimato) a number of named dependants like child- 
ren, wife, parents, brothers under age, and sisters who are unmarried 
or have been widowed, but it is expressly stated that this injunction 
will not apply to claims for maintenance from these if they are 
out-castes or apostates (any at r a patitebhyah), but an exception 
to the saving clause is in favor of the mother (anyatra matuh). 
In the Sukranlti (IV, i, II. 194-92) occurs a long catalogue of 
persons whom the king is enjoined to punish, and among them 
are the atheist (nastikah) and the blasphemer (Deva-du$aka1}). 
Mahamahopftdhyftya R. Shama S'astn has misunderstood the rule, 
and states that the failure of the mother and the apostate to 
maintain their dependants is not punishable ! 


See pp. 38-40, Ancient Indian Polity , where many instances 
ate cited to show the sacerdotalism of the Artha&astra ot Kautilya, 
the most illustrious of its class, from the standpoint of Dharma- 

According to the CaranavyQha of Sfaunaka, Arthas'astra id 
an Upa-Veda of Atharva-veda. The Atharva Veda is recognised 
as one of the four Vedas, which form the fourteen sources 
(sthanani) of Dharma in Ydjnavalkya, I, 3. As Aparftrka points 
out, if the number fourteen was not specified, and the Vedas were 
mentioned as Trayl, the Atharva- Veda would have lost its place 
as a source (p. 6 : Gaturdava grahaqZdfte Atharva-veda-samgraho 
na syat.) The enumeration of another four, to make up eighteen 
"sources," by Viwupur&qa is dismissed by AparfUrka with the 
observation that it catalogues the sources of vidya not dharma. 

KOtfeS 11 

In the four Arthas'Ztstra is named last. The Arthas'dstra is also 
included in Itihasa-purana, thus bringing it into the canon of 
Dharma. The authors of Dharma-pradlpa have erred in suggest- 
ing that Arthavastra is of an canonical authority, and that 
therefore the dictum ' Raja kalasya kdraqam ' being an Arthas'as- 
it a dictum (!) should not be accepted, (p. 15). The sentence occurs 
in a famous passage in the Mahabharata, to which Dharmapradlpa 
will not deny validity. 

Manu denied the right to expound or study the Dharmavastra 
to non-Br&hmanas (II, 16-17) : 

Ni$ekadi smas'finanto tnantraify yasyodito vidhifo \ 
Tasya s'astre adhikarosmin jfteyo nanyasya karhicit " 
Viduqft brahmanena idam adhy&tavyaw prayatnatah I 
Si$yebhyasca pravaktavyam samyak nanyena kenacit II 

The Chandogya Upani$ad (III, iv, 1-3,) equates Itihasa-Puraqa 
with the Atharva-veda, but they are open (according to S'ankara, 
Vedanta-sKtras, XXXIV, S.B.E., p. 229,) to all four castes. 



Three inscriptions of As'oka in the Barabar hill show that in the 
thirteenth and twentieth years of his reign he bestowed the rock-cut 
caves to the heretical Brfthmana sect of the Ajlvakas. (Smith, 
Avoka, p. 144, ed. 1901). The VahiyakS inscription of his grandson 
Dasfaratha states that immediately after his accession he bestowed 
"on the venerable Ajlvakas " the cave " to be a dwelling place for 
them as long as the sun and the moon endure." 

The Ajlvakas are known only from their i 
the Buddhists. Gosfala Mankaliputta, 
M ah S v Ira and at one time his follower, 
Ajlvakas at the time. They seem to 
color (Radhakrishna, Indian Philosop 
also the atomic hypothesis (ibid., II, 194n) 


Manusmfti (IV, 61) refers to pa$an$i gana (association of 
heretics). YSjfiavalkya, II, 192 provides for the maintenance of 
the regulations of their guilds : 

Srcnl-naigama-pVi$andi-gat)nn3mapyayani vidhfy 1 
Bhedam cai$am nfpo rak$et, purvavfttim ca pal ay an II 

Nftrada and Katyayana repeat the rule (vide my Ancient Indian 
Economic Thought, 1934, p. 184 where their words are cited). 
Medhatithi (on Manu, IV, 30), Vijfi&nesvara (II, 192) and KullUka 
on Manu, (IV, 30) define the pa$an$a as one who rejects the Veda, 
and so the Buddhists and Jains were also brought into the category. 
It is possible that the reference in Manu is to monasteries of 
Buddhists and Jains. The audience to petitioners precedes the 
inquiry by the king into their affairs. Kautilya (p. 39) advises the 
king to deal personally with the affairs of gods, heretics, learned 
Brahmanas, cattle, sacred places, minors, the aged, the afflicted, 
the helpless and women, in the order of enumeration. 

Tasmad devatayrama-pa$an$a-s'rotriya -pavu -punyastha- 
nanambala vfddha-vyadhita-vyasanyanfithanam strtnftm 
ca kramena karyani pas'yet. 

For the king's studies see Ancient Indian Polity, p. 39, note 63. 



TheArthayftstra distinguishes the courts as Dharmasthtya and 
Kantakas'odhana, and the third and fourth books of the Kau\iliya 
are devoted to them. In regard to the treatment of subjects, there 
is little difference between Kautilya and the smftis, and it may be 
therefore assumed that he followed only the Dhartnas'Bstra. The 
differences between him and YajSavalkya are for instance incon* 
siderable. The Dhdrmasthiya courts dealt not only with the civil 
matters included in the usual " eigteen titles of law/' but also 
tahatam (violent crime) and assault (dan^a-p&ru^ya). Theft 


had a great extension given to it by construction, so as to 
include abduction, on the principle that it is the theft of a human 
being, (Manu, VIII, 317) cheating in trade, (YSfllavalkya, II, 257) 
substitution of an article in deposit (ib. 246-247), and combinations 
of traders to raise prices (held again to be deceitful, ib. 249-250). 
The Kantakas'odhana courts dealt with such civil matters as the 
affairs of artisans, labourers and merchants, and offences again9| 
police regulations such as those relating to postitutes. Capital 
punishment cases came under them, as did all police and magisterial 
enquiries and investigations. It is clear that roughly the difference 
was that between the courts of a judge and a magistrate in British 
India today. The differentiation was not made on the ground of 
secularity or religion, (vide, Jayaswal, Manu and Yajftavalkya, 
pp. 116*7) and V. R. Ramachandra Dikshiter, Mauryan Polity 
pp. 160-164. 

Not only therefore is there no clear distinction between religious 
and secular law, which in the circumstances we can not expect, but 
the lines of demarcation between crime and civil wrong is not 
clear. In most crimes, the offender has not only to undergo punish- 
ment by fine etc. but he incurs the liability to pay to the injured 
party due compensation. The underlying idea is that they are not 
public offences but private injuries. Offences against the spirit of 
religion take the place of grave crimes against the state. This is 
the ground of the serious view taken of adultery and offences against 
women. The original punishment for adultery had been death, but 
Kaufilya reduced it to imprisonment and fine (op. cit., p. 228). The 
rule in Sukraniti making adultery and offences against women 
crimes in which the king prosecutes (IV, v, 83 ff.) is the result 
of viewing them as grave moral offences, likely to lead to varna* 
samkara. It would appear superficially that, (as suggested by 
Mr. C. S'ankararama S'astri, Fictions in the Hindu Law Texts , 
1926, p. 35,) contrary to Sir Henry Maine's generalisation, criminal 
law in India was the creature of civil law. The correct view is 
to regard both as the creatures of 




This is indicated in Manusmrti, VII, 14 and YajSavalkya, 1, 353. 

Taysarthe sarva-bhutftnam gopt&rath dharmatnatmajam I 
Brahmatejomayath Dan$amasrjat p&rvam I&varah II 
& and Dharmo hi Dan<fa-rKpena BrahmanS nirmitah purft I 


13, ll. 13-14. VEDIC BASIS OF HINDU LAW 

The assumption that not only all law and usage but all know- 
ledge is enshrined in the Veda, leads to the conclusions that (1) 
there should be internal consistency in law, (2) the differences 
which appear are resolvable by enquiry, and (3) for every 
rule of law a vedic basis can be discovered. As the Veda is 
eternal, omniscient and infallible, and the Vedas have no 
limit (an ant 5 vai vedah), it should be possible to say of 
them what was claimed for the Mahabharata (I, Ixii, 26) viz., 
1 what is not here is nowhere else ' (yan nehasti na kutracit), 
The MlmSmsS school held ' the Vedas entirely and exclusively 
concern themselves with Dharma,' Dharma being defined by 
Jaimini in his second aphorism as ' that which is signified by a direc- 
tion and leads to a benefit ' (Codan3lak$aijo artho dharmaff) .When 
one is unable to find Vedic authority for a rule, he would assume 
that the vruti had passed out of view (utsanna, lost) or is hidden 
(pracchanna), and the vruti text will come to view if diligently 
searched for. A bh3$yak5ra's skill and learning are shown 
by his discovery of the texts which refer to the matters dealt with. 
Medh&tithi and Vis'varUpa display the capacity, and particularly the 
latter, of whose work a modern writer has remarked that it " seems 
to have been written with the set purpose of establishing the Vedic 
origin of the Smrtis." (Fictions in Hindu Law Texts, p. 79). 

" When it is said that the Vedas are the source of Dharma, it 
IB not meant that the Vedas lay down precepts or injunction^ 


(vidhi) on points of Hindu Law, as later works like Manutmfti or 
YSjnavalhyatmfti do. All that is meant is that the Vedas contain 
incidental references to matters that are of interest to students of 
Hindu Law, that they take certain facts as well-known and make 
use of them for various purposes. The information that is contained 
in the Vedas on matters of Hindu Law is in the nature of what are 
known as arthavSdas in the Mim&msa' system. As arthavadas 
form a syntactical unity with the positive injunctions (vidhis) laid 
down in the Vedas, they are authoritative. They indicate with 
sufficient clearness what the state of things then was. If one were 
to collect together the scattered Vedic texts on such topics of Hindu 
Law as marriage, adoption, joint family, partition, inheritance, 
stndhana, he would find that the information is of considerable 
importance and is not quite so meagre as one is apt to suppose. The 
conclusion will irresistibly force itself upon us that the founda- 
tions of the Hindu Law are deeply laid in the Vedic age itself, 
that the peculiar characteristics that distinguish the Hindu Law 
of modern times from other systems of law had their germ in the 
Vedic period and that later Hindu jurists were not wrong when 
they relied upon the Veda as the first source of Dhartna." 
Mr. P. V. Kane, who has made the above observations, has 
collected a number of illustrations in justification of the conclusions 
in a valuable paper on the Vedic Basis of Hindu Law, published 
in 1939. 



The option or vikalpa can only be when there is a conflict 
between two vedic passages, and not when a sni^ti rule runs 
against a s f ruti t because the latter over-rides the former. But it is 
open to argue that with due diligence a yruti-pramaqa may be 
discovered for the smfft rule in question. To assume otherwise 
will lead to the summary and easy rejection of many sntfti rules 
on the ground of their not being traced to vruti. This is the 


orthodox Mlmfimsaka standpoint, which further is that action in 
such a case should be suspended pending the discovery (Fictiont 
lit Hindu Law Text*, p. 116), 



Strict interpretation according to AflmdmsZ will hold all 
conflict to be apparent only and not real, because of the canonical 
authority claimed for both Arthavastra and Dharmas (istra. But 
such a possibility is envisaged in the smrti texts on conflicts of laws. 
e.g. Yajffavalkya's dictum (II, 21) : 

Arthavastrat-tu balavad dharmas'astram iti sihitili \ 
The same principle is enunciated by Naradastnfti (I, 99) : 

Yatra vipratipattis-sy5t 

Arthas'astfoktamutsfjya dharmas'astroktamacaret \\ 

The doctrine of infallibity of the common source of both 
vftstras might justify the conclusion that s'ruti cannot be opposed 
to equity and logic (nyaya) and the position taken by Kautilya in 
the following passage : 

Sn&tram vipratipadyeta dharma-nyfiyena kenacit I 
Ny&yas-tatra pramaqam sy&t tatra patho hi nas'yati \\ 

See Ancient Indian Polity, pp. 164-172. 

The facile assumption that Arthas'astra is an inferior authority 
and should therefore be overlooked when it runs counter to Dhar- 
tnas'astra is repugnant to the orthodox tradition. Accordingly, in 
explaining the dictum of YajSavalkya (II, 21) the Mitak$arn main- 
tains that the word " arthavastra " in the rule is not to well-known 
writers like Utfanas (S'ukra) but to the arthas>dstra contained in 
DharmavHstra works. If there js a conflict uithin the Dharma- 
between the two classes of rules, the Dhartna rule should 


prevail. He illustrates it by two cases, (l) Manu (VIII, 350-351) en- 
joins the summary killing of an StatHyttt (manifest assassin, and bis 
like) even if he be a learned Brhmana. To act on the direction 
will be to go against a rule of Manu (XI, 89) that there is no expla- 
nation for the deliberate killing of a Brdhmana. The former is an 
artha text, which should give way to the latter, a Dharma rule* 
The reconciliation comes from taking the reference to the learned 
BrShman a ntatZyin as a rhetorical statement emphasising the force 
of the injuction on the treatment of assassins, patent and constuc- 
ti ve, and applying the dictum to cases other than those of Br&hmapas. 
(2) YajSavalkya, I, 352 gives a rule of prudence, viz. that the 
making of a friend is better than the acquisition of land and wealth, 
but he has also the high moral rule (II, 1) that free from anger 
and covetousness the judge should decide in accordance with 
Dharmas'astra. If a wealthy suitor is to be unjustly favored, the 
first rule may be observed, but it should not, being an artha precept 
opposed to a dhartna rule. 

VijaanesVara in discussing the texts dealing with gains of 
science, etc. (II, 118-119), which, if acquired without detriment to 
ancestral property (pitf-dravytlvirodhena), belong to the acquirer 
and cannot be claimed by co- parceners, states that the section 
of the code is full of texts based on worldly experience : 

Lokasiddhasya anuvUdakanyeva prSyeija asmin prakaraqt 



There was no appreciable development of the subject after 
Kautilya. He cites seventeen authorities. See Ancient Indian 
Polity, p. $0. Among them are writers with names which became 
famous in swrti literature, like Katyayana, Narada, Parfiafara and 
Brhaspati. It is not improbable that the same writers could 
written on both va&tras. 

*4 RljA&ttAftMA 



BhattasvSmin's commentary on the Kauiillya of which a 
fragment has been edited (Jayaswal acd Banerji-Sastri, Patna. 
1926) shows familiarity with Mimamsa methods of interpretation. 
SaAkarftrya's commentary on KSmandaktya Nltisara (ed. Ganapati 
S'astri, 1912) shows similar training. But they are inferior to 
great commentators like Medhatithi, Visfvarupa and VijSfines'vara, 
and even to men like Nandapan^ita. 



There is a good deal of Arthay&stra in Manu, and even more 
of it in Yajnavalkya, with whose code Jolly made a detailed 
comparison of the Kautiliya (Z. D. M. G., 1913, pp. 43-95) 
collecting in an appendix parallels from the smftis to over 200 
passages of the Arthas'&stra. Kautilya's doctrines are not merely 
more like those of Yajnavalkya than those of any other smfti t but 
the points of verbal identity are greater between the two. Jolly 
held that Kautilya was the borrower. I have shown grounds for 
thinking otherwise. See Ancient Indian Polity, pp. 34-37. 



In an epoch of Vedic revival and sacrifices, the Mlmnmsaka 
finds the attraction of the sntfti and the KalpasQtras greater than 
that of the Arthavastra. He specializes in Vedic exegesis (e.g. 
S'abarasv&min, Kumarila). He states emphatically that as " the 
Veda is the only source of Dharma, so Dharma is the only topic dealt 
with by the Veda, (Sankararama S'astri, op. cit. t p. 52)* Bh^ya, 
Samgraha, and Nibandha forms of composition rapidly progress 
with means supplied by MImftmsfi for subtle and exact analysis 
and interpretation. The comparative study of smfifs gains ground. 

HOtfi* 84 



Kfimandaka attempts to write his book in K&vya style. In 
fact, his commentator, S'ankarfirya regarded it as a tncrhZ-kSvya 
and made his comments on the assumption. Not only does 
Kamandaka use the ordinary anutup metre, but he tries more 
ornate metres also. Though he begins with a panegyric on Vinu- 
gupta (*.e Kaufilya, his book is not a summary of the Kau\iVtya> 
of which not over-much use is made. Kamandaka apparently 
intended his work to be an artha-samhitd, just as the Manusmfti 
is a dharma-samhita. The Nltisara is divided into sargas or 
cantos like a classical poem. It begins with the praise of the king, 
and was apparently not familiar with other forms of Government : 

hetur vfddher-vfdhSbhisammatab I 
Nayananandajananah s'a&anka iva toyadhefy H 

The second line, which states that the king delights the eye ad 
the moon gladdens the ocean, appears to contain a half-veiled 
reference to Candragupta II, the son and successor of Samudragupta. 
Sas'llnka is Candra, and Toyadhi is Samudra. 

The Nltisfira is generally supposed to be a work of the Gupta 
epoch. Formichi (cited in Sarkar's Hindu Positivism, p. 385) 
would assign its composition to the third or fourth century A. D. 
He regards it as anterior to the Bfhat-samhit& of Varahamihira 
(sixth century). Formichi's estimate will fit in with my suggestion 
that the Nltisffra is a work of the time of Candragupta II. 

Kfimandaka's simile will recall to one's mind Kalidfisa's verse 
(Raghuvaths'a, III, 41). 

Nivdtapadmastimitena cakju$3 nfpasya kSntaih 

ptbatafy sutananam I 
Mahodadheh pura ivendu-dartanftt gur 

prababhiiwf ncUmani U 

S*e Mow the not* to p. 56, U. 29-30, 




Dr. T. W. Rhys Davids pointed out in the introduction to his 
translation of the Dialogues of the Buddha (I, pp. xx-xxii) that 
the chief characteristic of the sutra was that it was not intended to 
be read but to be memorised. See also, E. J. Rapson, Ancient 
India, 1914, pp. 76-77 and my Ancient Indian Polity, pp. 19-20. 
The use of the sutra form was dictated by considerations of 
economy, oral transmission, and secrecy. 



The Buddhists having adopted the slitra form for their sacred 
canon were obliged, like the B rah m anas when they devised 
means for the accurate preservation and transmission of the Veda, 
to resort to public recitations in their convocations of the suttas of 
the TripHaka. The permutations of syllables in different forms 
(paiha) by which the Vedas were conserved, were not adopted by 
the Buddhists as their suttaa would not lend themselves, by 
lack of accentuation, to such devices. A sUtra work will be often 
nothing more than a list of headings. The late Mahamabopadhy&ya 
T. Ganapati Sfestri suggested that in the Kautfllya the sKtras 
were all in the adhikarana-satnuddes'a in the first chapter, and 
that the rest of the book was Kautilya's own commentary on 
them, as he had declared that in order to avoid in the case of his 
work the errors of commentators he had himself composed both the 
siltra and the commentary. 



Vide, Kane, op. cit. t p. 724 (Yajffasvftmin's bhftgya on Vstfstha* 
Qharmastttra mentioned by Govindasvamj in bis commentary on 

BodhZyana-DharmasVtra, II, 2, 51); p. 248 and p. 680 on Asahfi- 
ya's bha$yas on Gautama and Manu ; the loss of the other com- 
roentaries is inferential. 



Karka, the commentator on the sutras of Paraskara is a writer 
of about tt.D. 1000, while his text belongs to the sVtra age. 
Maskarin, the commentator of GautatnadhannasHtra (one of the 
oldest) belongs probably to the same period as Karka. Haradatta 
who wrote commentaries on the sfttras of Apastamba and the 
CfhyasUtra of Asfvalayana and the Dhartnasiltra of Gautama, must 
have been separated by over twelve centuries atleast from his 


See Note 27 supra. The search for a lost bhd$ya of Kautilya 

is unnecessary in view of Dr. Ganapati S&stri's convincing explana- 
tion. The declaration of Kautilya occurs at the end of his work : 
(p. 429). 

Dr$tv& vipratipattim bahudhB S'Sstrcju bhSs'yakdrBijSm \ 
Svayameva Vi$nuguptay-cak8ra sutram ca bhllvyam ca II 
Even if this verse is not Kaufilya's it will have to be accepted 
as representing an authentic tradition. 




This portion of his commentary stands out of the main bha$ya 
like an appendix, which it is. It is virtually a separate nibandha. 
A similar South Indian nibandha on VyavahZra, not tacked on tg 


like Mftdhava'3, is Varadarftja's V?avahar<tniri}ay* 9 whicb 
I am about to publish. 



MahfirRja S f arabhoji of Tanjore (A.D. 1798-1833), who had left 
himself no kingdom to govern, compiled a digest on civil law named 
Smrtisftra-samuccaya. The second MaharSjS of Kfigmir and 
Jammu, Ranblr Singh (A.D. 1857-1885) commissioned a nibandha 
of which the Prftyascitta-kfin^a was completed and published. It 
contains over 40,000 grant has. ZcSrendu of Narftyapa (printed 
by the AnandaVrama) was written in A.D. 1838 (Kane, op. eft., 
p. 514). 

The famous Balambha^iya on the Mitak$ara was composed 
by Balakrsna alias Bftlambhatta Payagunde at Benares towards 
the end of the eighteenth century. The date of the writer is given 
by the late Babu Govinda Das as 1740-1830. He was known to 
Colebrooke. KestevadSsa composed between 1770 and 1830 
the digest Ahalyft-kamadheuu, named so after Ahalyfi Bai 
Holkar. Warren Hastings, Sir William Jones and H.T. Colebrooke 
were responsible for getting written the Vivddarqavasetu, (1773), 
Vivddasclrarqava (1789) and Viv&da-bhatigcirijava (before 1796) 
<by a board of pandits, Sarvorus r arman Trivedi and Jagannfitba 
TarkapaScanana respectively. 


A translation of Yajftavalkyasmrti was advertised in the series 
in 1876 (p. xlvi of Vol. I) and it is not clear why it was dropped. 
Max Mullet's Life and Autobiography throw no light on the cause 
of the omission. Perhaps it was dropped owing to the publi- 
cation pf V. N. Mandlik's translation in 1880* 





A criticism of my observation that revived interest in the 
sources of Hindu law is due to Indian judges and lawyers possessed 
of a knowledge of Sanskrit is that Indian judges have been often 
more anxious to ignore the sources and change the law than 
European judges. There is an element of truth in the criticism. 
Hindu law is parting more and more from the traditional law 
through judicial interpretation chiefly ; and such interpretations 
are due as often to the importation of exotic notions into Hindu 
jurisprudence as to the wish to bring law into conformity with the 
" modern conscience." Sir Henry Maine was never tired of attacking 
European judges in India as being more scrupulous about the religion 
and the religious usages of Hindus than the Hindus were. The 
following is a sample of his attack. " It has been said by an 
eminent Indian lawyer that, when the judges of the Sudder Courts 
were first set to administer native law, they appear to have felt as if 
they had got into fairyland, so strange and grotesque were the legal 
principles on which they were called upon to act. But after a 
while they were accustomed to the new region, and began to behave 
themselves as if all were real and substantial. As a matter of fact 
they acted as if they believed in it more than did the native 
inhabitants." (Village Communities, p. 45) J. H. Nelson, like 
Maine, attacked the substitution by the courts of smrti law for 
customary law, which alone should be upheld for castes other 
Brahmana (see Nelson's View of the Hindoo Law and his 
Scientific Study of the Hindu Law, 1881). 



See Max Mueller, Chips from a Ge 
pp. 377-433, containing his review (1872) of 
Colebrooke is said to have preferred to 


Judge at Mirzapur, owing to its nearness to Benares from 
which he was able to obtain both pandits to guide his studies and 
manuscripts for study. His study of Mlmamsa probably began 
even earlier as he had recognised the necessity for a mastery of 
it for understanding the texts of Hindu law. " The disquisi- 
tions of Mlmamsa ", he pointed out years later in his paper 
on the subject (Miscellaneous Essays, Madras reprint, 
Vol. I, pp. 295-324), " bear a certain resemblance to juridical 
questions ; and, in fact, the Hindu law being blended^ with the 
religion of the people, the same modes of reasoning are applicable, 
and are applied to the one as to the other. The logic of Mlmamsa 
is the logic of law ; the rule of interpretation of civil and religious 
ordinances. Each case is examined and determined upon general 
principles ; and from the cases decided the principles may be 
collected. A well-ordered arrangement of them would constitute 
the philosophy of law ; and this is, in truth, what has been attempted 
in the Mlmamsa." (op. cit. t p. 317). 




Sir Henry Maine regarded the Hindu law of stridhana as having 
been tampered with by Brahmana jurists (vide, Early History of 
Institutions, pp. 321-36). He concludes : " These inquiries, pushed 
much further, have shown that the Hindu laws, religious and 
civil, have for centuries been undergoing transmutation, develop- 
ment, and, in some points, depravation at the hands of successive 
Brahmanical expositors, and that no rules have been so uniformly 
changed as we should say for the worse as those which affect 
the legal position of women." 



In commenting on Baudhayana's famous prescription of celi- 
bacy for forty years (brahmacarya) (II, l), S'abara suggests that 


the rule was possibly introduced into Baudhayana's sutra by an 
impotent person who wished to conceal his defect. He remarks 
that the smrtt text 'the food of the sacnficer who has bought 
soma deserves to be eaten (krttarajako bhojyannah ' as due to one 
in starvation. A smrtt rule declaring that the adhvaryu in entitled 
to the cloth used in the Vaisarjana homa is characterised by 
S'abara as due to priestly avarice. Again he rejected some smrtis 
and accepted others, anticipating the modern method. 

(See Fictions in Hindu Law Texts, pp. 100-101) 


21, //. 23-24. KAUTILYA AND His GURU 

Kautilya cites the views of his teacher, to whom he shows 
reverence in Hindu style by referring to him not by name but by 
the word Acarya in the honorific plural, as many as thirty-nine 
times, and each citation is for the purpose of dissenting from the 
teacher's views. The references are collected on pp, 177-179 of 
Dr. Shama Sastn's Index Verborum to the Artha&astra. 



(1) J. J. Meyer (Alttndischen Rechts-schriften, Leipzig, 1927, 
pp. 86-88) holds that smrtt literature, does not offer anything 
like a development of secular law, but represents the slow incor- 
poration of secular law, which had its birth and development m a 
different milieu into Brahmanical works. He is apparently thinking 
of the older sutras with an insignificant legal content, for which the 
explanation is that the law proper was preserved only in recollection 
and was unwritten. The procedure in judicial trials emphasises the 
functions of the sabhyas, or assessors, whose selection according 
to different vedic s'akhas, implies the utilisation of divergent types 
of remembered rules. The sabhyas really decided the suit, the 


presiding judge merely conducting the trial and the king delivering 
and carrying out the judgment. 

Meyer also holds that smrtis merely represent a literature of 
magic, and objects to their being described as law-books. But 
he overlooks the fact that what society enforces is law, and 
that there is no evidence that " secular " law developed first 
through Artha&astra and then crept into smrti. 

For Benoy Kumar Sarkar's views that Arthasastra is 
" public " while Dharmas'astra is " private " law (whiclj overlooks 
the close connection in India between state and family, and the 
duty of the state to correct and punish irregularities in family life) 
and that Arthas'astra is real-politik, while Dharmas'astra represents 
only pious wishes (an old view of Maine), see his Hindu Positivism, 
and particularly, pp. 203 and 251. For his conception of Dharma- 
s'astra as a ' hotch-patch of materials emanating from different 
sources and reflecting life and history ', see ib. p. 197. Even in 
modern polity and law there is an element of idealism. It was 
much more so in ancient institutions. Breloer's view that Artha- 
s'astra is " planned economy," apparently suggests a human 
planner. In a wider sense Dharma is planned economy but the 
author is held to be the Supreme Being. 




They are expressed in his Manu and Yaffiavalkya. To 
him artha-s'astra and dandaniti are identical and constitute 
"secular" law (pp. 5, 7, 9, 16, 25, 26, 41, 42, 50, 84,93,263, 
and 273). He thinks that artha law was known as vyavahara in 
the time of Gautama (p. 16) and that it is not the same as dharma 
law (p. 17). The distinction rests on a hypothesis of a differentia- 
tion of secular and religious sides in Hindu life for which there 
is no warrant in the Kautiliya. His statements rest on no secure 
authority, e.g., 'Dharma is penance law" (p. 13); "vyavahara 


is municipal law and secular law" (p. 13); and " rajanlti is 
constitutional law " (p. 255). 

B. K. Sarkar has a glimpse of the truth when he states : " In 
a sense, every student of Dhannayasta was a student of Raja- 
dharma, " and on the other hand every student of Rajadharma^ 
Nlti&astra Dandanlti or Arthas'dstra was a student of Dharma- 
s'astra from the earliest history. " (op. cit. p. 514). 




The famous s'loka on the subject occurs in the Yak$a-pras'na 
(Mahabharata, Vanaparva, ch. 314, si. 119, Kumbakonam edn.). 
It runs thus : 

Tarko apratisthah s'rutayo vibhinna 

Naiko munir yasya tnatam pramanam I 
Dharmasya tatvam nihitam guhayam 

Malta jano yena gat ah sa panthah II 

Mahajana does not mean, as it has sometimes been interpreted 
in recent times, the leader of a popular assembly. It stands for 
s'ista or sadhu, whose acara (usage) is one of the recognised 
sources of Dharma. (Maim, II, 6 ; Yajfiavalkya, I, 7.) 



The discussion of what constitutes Dharma HI Vlramitrodaya 
Panbhasaprakas'a (pp. 26-32) is illustrative. The Kalpataru also 
begins with such a disscussion. 
Apastamba (I, 20, 6) says : 

Na dharmadharmau carata * Avam sva ' ttt ; na deva-gan 
dharva na pitarah acaksate ' Ayam dharmo, ayam 
adharma ' itt. 


" Dharma and adharma do not wander about saying ' Here we 
are ' ; nor do the gods nor the Manes nor the Gandharvas declare 
* this is Dharma, this is 4 -dharma.' 

The Naiyayika definition of Dharma is that it is a quality 
of the Soul (Atmagunau dharmadharmau). It is invisible, and 
has to be inferred. Dharma is what is done by enjoined action,, 
and is a quality of men. (Vihitakriyaya sadhyo dharmaJt 
pumso guno mat all). The view of the Mimamsa is contained 
in Jaimini's definition "that which is signified by a command and 
leads to a benefit is termed Dharma" (Codanalak$anartho 
dharmah). According to Kumarila, both the act enjoined by and 
the material connected with it come within the scope of Dharma. 
The Naiyayika^ hold that Dharma carries with it the idea that 
an invisible (adr$ta) effect known as apurva attaches to the soul 
from the performance of a religious act, and that it lasts until the 
benefit contemplated by the act is attained. 

The ways in which the different schools elaborated the 
idea may be gathered from their summary in Mahamaho- 
padhyaya Bhimacarya Jhalkikar's Nyayakos r a, 3rd edn., 1928,, 
pp. 386-388. 

See Dr. Ganaganath Jha's introduction to his translation of 
the Slokavartika of Rumania (Bibhotheca Indica, 1900-1908) 
pp. v-xviii. 



The classification in the text follows the Mitakara, on YajSa- 
valkya, I, 1. See my Ancient Indian Polity, p. 89. 




There are two fundamental hypotheses, viz., that the Veda 
is the source of all knowledge and that its draws it authority from 
itself (svatafy pramanam). They reKeve the Mlmamsaka of the 


onus of proving the doctrine and lay upon the opponent (purua- 
pak$a) the burden of disproving it, if he could. The self-evident 
nature of the Veda implies that it is valid by itself. But as 
knowledge springs from the Veda alone, all knowledge is valid. 
As Dharma is the only subject of s>ruti, i.e., the Veda, Dharma 
embraces all knowledge. VijSanes'vara in commenting on Yafita- 
valkya, II, 21, says. 

Dharmas'astrantargatameva rajanlti-lakanam artha- 
sxtstram iha vivakitam. 



Yajfiavalkya (I, 3) reckons them as fourteen, viz., the four 
Vedas, the six Vedangas, and Purana, Nyaya, Mlmamsa and Dhar- 
mas'astra. The Visnupurana (as cited by Apararka) adds four to 
the dharma-vidyah, viz., Ayurveda, Dhanurveda, Gandharvaveda, 
and Arthas'astra. Apararka holds that these fourteen or eighteen 
constitute the sources of vidya (knowledge) and not of dharma. 
The distinction which he makes between the two is illogical, for, 
knowledge and dharma are equated. The Vlramitrodaya has 
sections named Cikitsa-prakas'a, Jyoti$aprakas r a and Laksaqa- 
prakas'a (the last has been printed) and the Todarananda has a 



I have summarised the relevant information about this great 
digest, in two papers on Lak$mldhara and the Krtya-Kalpataru 
and Vijnanes'vara and Lak$midhara, published in the Golden 
Jubilee volume of the Madras Law Journal, (1941), pp. 148-168 and 

I have discovered what purport to be two of the lost books of 
the Kalpataru. They deal with vrata and puja. A fragment 
which relates prayasccitta has also been found. 




The Smrticandrika, which Mr. Kane regards as the most 
complete of the earlier South Indian digests, (op. cit., p. 343) deals 
only with Samskara, fihnika, Vyavahara, Sraddha> Asauca, and 
Prayasccitta. The Smrti-muktaphala of Vaidyanatha Diksita 
has sections on Varnas'rama, Ahnika, Asauca, Sraddha, Suddhi 
Kala, and Prayasccitta. Mr. Kane (p. 671) mentions a Vya- 
vahara section of it, and Mr. J. R. Gharpure of Poona has 
personally mentioned to me that he has seen a copy of it, but it 
seems unknown in South India. The date c. 1600 is suggested by 
Mr. Kane for Vaidyanatha Diksita. 




They are those dealing with prati&ha, prayas'titta, s'anti 
and mok$a, for all of which he had originals in the Kalpataru, on 
which he has built his own nibandha. 



See S'ankararama S'astn's Fictions in Hindu Law Texts , 
passim, and Medhatithi's long comment on Manu Stnrti, II, 6. 



In resolving such apparent conflicts (the reality of such 
conflicts will not be accepted) a number of principles are utilised. 
" A Vedic basis is presumed only in those cases where an invisible 


effect or an effect not accountable to any visible, tangible cause is 
deemed to be produced. Some smrtis are dr$tartha, that is, are 
intended to produce a visible result ; and, some are adr$tartha t 
that is, are intended to produce an invisible result. The ultimate 
objects aimed at by the former class of smrtis are Artha and 
Kama, that is, wealth and pleasure ; of the latter, are Dharma and 
Moksa, that is, virtue and salvation. Even in the case of adrst&rtha 
smrtis, where a particular text is obviously due to interested causes 
or motive^ like avarice, ignorance etc., it is not necessary to resume 
a Vedic orgin for it." (Fictions in Hindu Law Texts, p. 105). 
Or, the conflict may be due to incorrect exegesis or failure to 
reject a manifest interpolation into the smrti from which the 
controverted passage is taken. 

The distinction between drtartha and adr$tartha is also 
sometimes treated as a distinction between nyayamula and vac ana 
mula, and lokasiddha and vedasiddha smrtis. 

Again, in considering contradictions arising from conflicting 
usage, a principle to be borne in mind is that the acara of a good 
man (sadhuh) is not binding if he disbelives in the Veda. This 
rules out Buddhist and Jama customs unless they have indepen- 
dent Vedic or smrti authority. Precedents of conduct even in 
s'ruti are valid only if such conduct was clearly due to a conscious 
sense of rectitude, i.e., of doing a meritorious act, in the performer 
{op. cit., p. 138). 

The Bhavisya-purana, cited by the Viramitrodaya (Paribh,, 
p. 19) classifies smrtis as under : 

Drtartha tu smrtib kacit adr$tartha tathapara \ 
Dri^tadri^tartharupanya nyayamula tathapara II 
Anuvadasmrtistvanya s'i^tair-drista tu pancaml I 
Sarva eta Vedamula dritartha parihrtya tu II 

The Drit arthasmrti is said to deal with the following topics, 
according to the same Purana : 

a$gunasya prayojyasya prayogah karyagauravat I 
Samadlnam upayanam yogo-vyasasamasatah II 


Adhyak^atjam ca nik$epab kantakanam nirupanam \ 
Dr$tarthe yam smrtih prokta r$ibhih Garudatmaja II 
The Arthas'astra under this classification is a drstartha smrti, 
and has no Vedic source (a-vedamula). The smrtts with a Vedic 
basis are classifiable as (1) other-worldly, (2) worldly as well as 
other-wordly, (3) ratiocmative and (4) digests. 


The adoption of a boy, who has undergone his upanayana in 
his father's house, is prohibited by Kamalakara, on the authority 
of a passage of the Kalikapurana, which is thus translated by 
V. N. Mandlik, (Trn. of Vyavaharamayukha, p. 58) : 

" A son whose ceremonies upto tonsure have been performed 
with the gotra or family name of his father, does not attain the 
sonship of another man." 

Nilakantha (Vyavaharamayukha, ed. Kane, p. 11 4) rejects the 
passage on the ground that in two or three copies of the Kalika- 
purana it is not to be seen : 

I dam tu vaco na tat ha visrambhaqiyam, dvi-tri-Kalika- 
purana-pustake$u adars'anat. 



A trained Judge replaces the King in trials (Mann, VIII, 9, 11) 
and he judges along with three assessors (sabhyah). The same 
procedure is laid down by Yajftavalkya (II, 3) : 

Apasyata karyava&at vyavaharan nrpetia tu I 
Sabhyaify saha niyoktavyo brahmanah sarvadharmavit \\ 
Narada indicates the manner in which the judge should pro* 
ceed to discharge their duty : 

Dharma&astram puraskrtya pradvivUkamate sthitafy I 
Samahitamatfy pas'yet vyavahar&n anukramat II 


The duties of the assessors are laid down by Manu (VIII, 10-19). 

The sabhyas had to be of an odd number (three according to 
Kautilya and Manu and any number upto seven, so long as it was 
odd) for the sake of getting a decision m case of difference of opinion, 
as pointed out by Mitramis'ra : 

Samkhya-vaisamyam tu, bhuyo alpavi-rodhe bhuyasam syat 
iti (Vlramitrodaya, p. 35). 

The judge must abide by the finding of the assessors, according 
to Brhasffati (Trn. Jolly, I, 24). 



In determining doubtful points of law, the rule to follow was 
the opinion of those conversant with law and usage (Dharmajfia- 
samayah pramanam) , Manu, XII, 108, laid down that in cases in 
which the law was not known (anafiiate$u> accepting the text of 
the Kalpataru instead of * anamnatesu ' in the printed editions, 
the law should unhesitatingly be taken to be what the cultured and 
holy men (s'tstah) lay down : 

AnajHate^u tu dharmesu kathamsyat iti cet-bhavet I 
Yam s'ista brahmana bruyuh sa dharmas-syat a&ankitali II 
According to Jayaswal (Manu and Yafftavalkya, p. 78) the Samiti 
or pansad was the body which settled disputed law in Vedic 
times. The name was kept by later ad hoc committees with reduced 
numbers, and they became also bodies of experts. Manu lays down 
that if a parisad cannot be constituted the opinion of even one 
* excellent brahmana ' will suffice. 

Who are the men qualified to sit on a parisad ? The answer 
is that they should be s'istas (who are described as akamatma), 
they should be sympathetic to all living beings (samah sarvabhute$u), 
and learned in the Vedas (bahus'rutalt), they should accept the 
validity of both Veda and perception (s>ruti'pratyak$ahetavab) and 
they should be skilled in logical inference (uha-apoha-kus>alab), 


practical-minded (des'a-kala-vibhagajnah) full of resource (yukti- 
mantah) and of blameless character (sadacarah). 

In constituting apariad certain considerations were to be borne 
in mind : representation of all s>akhas of the Vedas, and in cases of 
trial requiring special knowledge of arms etc. the inclusion of experts 
in such branches of knowledge. The strength of a pariad may be 
increased if it is instituted for the determination of special matters like 
penance (then its strength should not exceed seven), mimamsa (when 
its strength should be under twenty-one) and for grave sins (when it 
can go up to a hundred members). The pari$ads for katriyas and 
vaisyas may be still larger in size. The Krtya-kalpataru (Brah- 
macari-kanda, f . 69) limits the scope of caste pari$ads to the deter- 
mination of anuloma, utkrtavarna-vadha t utkrtastrlgamanadt 9 
vrata, and s'uddhi. This restriction of scope in pariads for non- 
Brahamanas is interesting as it must reflect the practice in the 
eleventh century. 

Sankha-Likhita, cited in Kalpataru, (ib. fol. 60) limit the 
scope of a Br&hmana pan$ad to the determination of the correct- 
ness of Vedic texts, (tfruti-grahatjam), smrti rules, custom and 
usage (acara) and Dharma generally. It will be seen that a Brah- 
mana-partad's scope was much wider than that of parisads, for 
other varnas. The difference is probably due to the fact that the 
former were the bodies normally convened to determine rules for 
judicial guidance. 

After the seventh century A. D., the pari^ad apparently ceases 
to function, and the Pandita (who bears the title of Vinaya-Sthiti- 
Sthapaka in the Gupta inscriptions) comes into prominence as a 
Legal Remembrancer. Later on, heads of religious Mathas claim 
the right to constitute parisads or exercise themselves the functions 
of parisads. 



An idea of its persent size may be gained by the following 
data. " If all the smrtis cited in later nibandhas be taken into 

NOTES 101 

account, the number will be found to be about a hundred." (Kane, 
op. cit. t p. 134). Mr. Mandlik, who made elaborate calculations 
of the authorities quoted by certain nibandha writers found for 
instance, that Kamalakara quotes in the Nirnayasindhu alone 13 
works on $ f rauta % 131 smrtis, 68 puraqas, and 272 bhayas> 
nibandhas etc., making in all 484. See p. Ixvi of the Introduction 
to his Vyavahara-mayukha, 1880. 


A point to note is that the earlier nibandha writers like 

Laksmidhara quote a relatively smaller number of smrtis and 
puranas than writers like Hemadn and Kamalakara. Even if we 
allow for Laksmidhara' s claim that he made it his rule not 
to cite ordinarily more than one or two authorities when a point 
had to be established, the very large number of later smrtis calls 
for enquiry. Mr. Kane's list of works on Dharmas'astra runs to 
170 printed pages of double-columns, and his list of authors runs 
to 83 pages. 


A reading of Mr. Kane's work or of Jolly's Hindu Law and 
Custom will show how great was the activity during the period of 
internecine wars which preceded the Musalman conquest and 
during the Muhammadan period itself. 




This is stated forcibly by Kautilya (I, 19) : 

Prajasukhe sukham rajnah prajanam ca hite hitam I 
Natmapriyam hitam rajnah prajanam tu pnyam hitam H 

The whole of the Rajadharmaparva of the Mahabharata is 
an elaboration of this dictum. 

See Ancient Indian Polity, pp. 85-87. 




The creation of the King by the Supreme Being is found in 
the stories of the Social Contract in the Mahabharata (S'antiparava 
ch. 67-68). See also, 

Manusmrti, VII, 3, Kautiliya, I, 13 and Sukranlti, I 

See Ancient Indian Polity, pp. 39, 80, 81. 


34, //. 14-16. HORROR OF ANARCHY 

See Arajata. 
- See ib., pp. 49, and 82-83. 



Vide ib. 108. Somadevasun puts the point pithily : 

Ny ay at ah parlpalake raffti prajanam kamadugha dis'ah I 



The dictum that the king is the cause of the complexion of his 
age is a picturesque way of saying that on the king rests the 
responsibility for good and bad government, through which, accord- 
ing to ancient Indian belief, the complexion (or, as we would say the 
atmosphere) of the yuga in which he lives will be changed for better 
or worse. It occurs in a long passage expounding regal responsibility 
in the Santiparva of the Mahabharata, where it may be studied in 
its context. (ch. 69, vv. 74-105). The responsibility consists 
in duly enforcing the law, i.e. Dandanlti. A careless, idle, indifferent 

NOTES 105 

or unjust king will not observe the rules of the science of 
government. Then he will incur the odium for not only going 
himself wrong but ruining the people. The passage may be render- 
ed thus : 

" Dandaniti compels men to observe the duties of the castes and 
orders. Duly observed, it makes people act virtuously. If the four 
varnas attend to their appointed duties, and wholesome barriers 
are maintained, then peace and contentment flow from the due 
enforcement of law, people are freed from fear, the dvijas attend 
to their prescribed social duties, and the people are truly happy. 
Whether (this result having been produced) it is the king who makes- 
the age, or the age it is which makes the king (i.e. do what he does) 
admits of no doubt ; for, it is the king who makes the age. (Raja 
kalasya karaqam). The first yuga (thus) i.e. the Golden Age, 
comes into being when a king governs in strict accord with Danda- 
nlti. Righteousness is the feature of the Krtayuga (the first Age) ; 
there is no wrong-doing in it. The men of all the four orders 
(caturvarna) find no satisfaction in unrighteousness. Every one 
gets what he desires and keeps it (in such an epoch). The Vedic 
rites are productive (then) of spiritual merit (puny a). The seasons 
are joyous, and free from evil . . . Diseases disappear. Men 
live long. Wives are not widowed. Misers disappear. The 
earth yields in abundance even without being tilled . . . Noth- 
ing but virtue exists. These are the marks, Yudhisthira, of the 
Krtayuga. When a king relies only on discharging three parts of 
his duties (according to Dandaniti), the epoch becomes like Tret a- 
yuga. . . The earth (then) yields crops only when tilled. If a 
king neglects balf his duties of government, an age like the Dva- 
parayuga sets in. The tilled earth now yields but half of what 
it could yield. When the king totally ignores the Dandanlti and 
governs oppressively, then the Kaliyuga sets in. During this 
epoch vice is rampant, and virtue is disappears. Men fall away 
from their appointed duties. S'udras live by mendicancy and 
Brahmnas by service (reversing their appointed modes of life). 


People fail to get what they aim to secure, and what they obtain 
they are unable to keep. The intermixture of castes by marriage 
{varnasamkara) becomes common. The performance of Vedic 
rites is ineffective. The seasons are fraught with evil. Disease 
thrives, and men die prematurely. The clouds do not rain, and 
the crops wither. The earth dries up when the king does not 
observe the rules of the Dandamti. The king is (thus) the maker 
of the Krtayuga (in his own life-time), of the Tretayuga and of 
the Dvaparayuga ; he also causes the Kaliyuga, and* . . incurs 
great sin. Sinking in the sins of his subjects he becomes infamous 
and plunges into Hell." 

It will be seen that the aim of the passage is to impress on 
kings the duty and the wisdom of ruling according to the yastras. 
There is nothing in it to suggest that the king has special powers 
to act contrary to established law and usage. 

Sukrarilti (IV, i, 11. 90 125) paraphrases, as is its practice, 
the chapter of the Mahabharata in which the dictum ' RUja 
Kalasya K8ranam f occurs. It puts the matter pithily : 

Yugapravartako raja dharmadharma-pras'ik^anat I 
Yuganam na prajanam na doah kintu nrpasya hi II 
Supunyo yatra nrpatili dharmistah tatra hi prajafy I 
Mahapapl yatra raja tatradharmaparo janah II 

Mr. B. K. Sarkar, who translated the expression yugapravartako 
Raja as " the King is the maker of the Age " (possibly to bring 
it into line with the Mahabharata expression), added a pointed 
warning : " This is the exact opposite of the dictum ' the King 
can do no wrong" To rule in strict accord with the yastras 
was in India a personal responsibility of the King* He could do 
wrong and great wrong, by negligence or inattention to the s'Ustras 
in the act of governing. 

By a curious anomaly this telling sentence, torn from its 
setting, has been wrongly interpreted and cited in defence of change 
in social usage initiated the state. The drift of the injunction is 
conservative, and will not justify a reformist interpretation. 

NOTES 105 


34, II. 25-26 RXMARAJYA 

See the picture of the return of the Golden Age in the 
Ramayaita, VI, 131, si. 97-104 : 

Raghavas'capi dharmatmd, prapya rajyam anuttamam I 
Ije bahuvidhair yafnaih sa-suta-bhratr-bandhavaJi H 
Na paryadevayan-vidhava na ca vyalakrtam bhayam I 
Na vyadhijam bhayam caslt Rame rajyam pras'asati II 
Nirdasyurabhavan loko\ianartham kascit aspr&at I 
Na ca smavrddha balariam preta-karyatii kurvate II 
Sarvam muditamevasit sarvo dharmaparo bhavat I 
Ramamevanupasyanto nabhyahimsan-parasparam II 
Asan var$a-sahasrani tatha putrasahasrinali I 
Niramaya vis'okasca Rame rajyam pras'asati II 
Nityamula nityaphalah tar avail tatra pu$pita1i I 
Kamavarsi ca parjanyah sukhas-sphars f asca marutah II - 
Svakarmasu pravartante tustah svatreva karmabhili I 
Asan praja dharmapara Rame s'asati nanrtah II 
Sarve lakatja-sampannah sarve dharma-parayanali I 
Das'avarqa-sahasrani Ramo rajyam akarayat II 

The way in which a righteous king changes his age into the 
Golden Age is described in Mahabharata, S'antiparva, Ch. 69, 
vv., 74-105. 



Kalidasa (Raghuvam&a, VI, 39) describes Kartavlryarjuna's 
miraculous power of projecting himself before anj 
an offence was about to be committed and the 
from committing the offence, instead of 
after the offence : 

Akaryacinta-samakalam eva praturf frt&fan 
capadharah purastat \ 



Antas>s r arire$u apt yali prajari&m pratyadideva 
avtnayam vineta H 

Kartaviryarjuna was the king of the Haihayas, with his capital 
at Mahismati. By propitiating Dattatreya he obtained from 
him these boons : a thousand arms ; the extirpation of all evil 
desires from his kingdom ; the subjugation of the world by just 
government ; victory over enemies ; and death only from the hands 
of a person renowned through the universe. He took Havana 
a prisoner. He was killed by ^.ras'urama. The Vi$aupurana 
says of him (IV, 11): 

Na riunam Kartavlryasya gatim yasyanti parthivah I 
Yajftair-danair-tapobhir-vd pras'rayena s'rutena va H 



The description Treta-yuga-pravartita-Kartayuga-vrttanta 
is applied to Rama by the Vaisnava saint Vedanta Des'ika in his 



A coronation oath (pratijHa) had to be taken by the King on- 
his abht$eka. If he failed to keep the pledge, he was stigmatized 
as an asatya-pratifiia and was held to have automatically forfeited 
the throne. The boast of the satrap Rudradaman (A.D. 128-150), 
who was a S'aka, that he was satya-pratifHa meant not that he 
was faithful to his international or treaty engagements, but that he 
truthfully adhered to the terms of his coronation oath. The killing 
of the last Maurya, Brhadratha, by Pusyamitra, was on the ground 
of pratifra-durbala (Baza's Har$acarita) (Trn., p. 193). The 
traditions mention the destruction of king Vena for mis-government.. 

NOTES 187 

The Mahabharata (Aims'. Parva., Ixi, 32-33) specifies the kind of 
rulers who could be killed : 

A-raksitaram hartaram viloptaram anayakam I 
Tam vat raja-kalim hanyuh prajas-sannahya ntrghfitant H 
' Aham va rakita ' ityuktva yo na rakati bhumipah \ 
Sa samhatya nihantavyah s'veva sonmadaturah II 



This is indicated in the Mahabharata (XII, ch. 71, s'L 10) : 
Balisastena s'ulkena dandena athaparadhinam \ 
Sastranitena lipsetha vetanena dhanagamam II 
The King is made the servant of the people by being given his 
share, says S'ukra (I, 375) : 

Svabhagabhrtya dasaytve prajanam ca nrpah krtah \ 
The same idea is attributed to the Buddhist teacher Aryadeva, 
who retorted to a king, when he claimed that he was the fountain of 
all transactions : " What conceit is yours, King, when you are a 
mere servant of the gana, receiving one-sixth share as your wage ?" 
(Cited from Catuswattkaka in Dr. U. N. Ghosal's Hindu Political 
Theories, p. 209). 

See my Ancient Indian Economic Thought, p. 114 and p. 189. 



The King had to take with deep faith the coronation oath, 

which is described thus by the Mahabharata (S'antiparva, Iviii, 

115-116, Kumbakonam ed.) : 

Pratiffiamca abhtrohasva, manasa, karmana, gira I 
" Palayisyami aham bhaumam, Brahma" ityevacasakrt II 
Yascatra Dharmo nltyukto, dandanlti-vyapas'rayah I 
Tam as'ankah karis^yami, sva-vas'o na kadacana" II 

(cf. Jayaswal, Hindu Polity, II, p. 45). 



Candes'vara (Rajanrtiratnakara p. 74,) cites this text : 

" Adyarabhya na me rajyam, raj ay am rakatu prajali " f 
7/t sarvam praja-vinum sak$inam s'ravayen-muhub II 
The last line is added to the verse from the Mahabharata, as 
it perhaps occurred in CandesVara's copy of the epic. 

The dictum " Navinub prthvl-patih" i.e. there is no king 
who is not " Visnu " is well-known. 


This is laid down in the following precept for which para- 
phrases occur in the smrtis : 

Dharmadharmau vijanan hi s'asate abhiratas-satam I 
Prajam rak$et nrpas-sadhuh hanyacca paripanthinah II 



The classical example is that given in the Uttarakanda of the 
Ramayana, ch. 73 and 76. A Brahmana brought his dead son, who 
was hardly more than a boy, to the palace of Rama and complained 
that the death was due to the fault of the king. Rama admitted 
responsibility, convened a pari$ad of sages to consider the cause of 
the misfortune, and was informed by Narada that it was owing to a 
s'udra performing austerities. Having preserved the corpse of the 
boy in oil, Rama proceeded to search for the s'tidra whom he found 
in the south. The ascetic reveals himself as a s'udra named 
S'ambhuka, who performed the austerities to attain the status of 
a god. Rama decapiated him, and prayed for the restoration 
of the life of the dead child, who promptly revived. Kalidasa 
(Raghuvamsa, XV, 42-57) retails the incident and adds that the 
S'ambhuka (so spelt here) obtained Heaven, since he had undergone 
punishment at the hands of the King for his transgression : 

Krtadandah svyam raffia lebhe s'udrah satatn gatim I 

NOTES 109> 

Bhavabhuti, who introduces the incident in the second act of 
Uttararamacarita, makes Rama raise S'ambhuka to the Vairaja 
heaven for his tapas, even though it was against Dharma for him 
to have performed it. 

The relevant verses in the Ram&yana are : 

Rajadoair vipadyante praja hyavidhipalitah I 
Asad-vrtte hi nrpatau akale mriyate janah \\ 
Yadva purevayukffini jana janapade^u ca I 
Kqrvate naca rakasti tada Kalakrtam bhayam II 
Suvyaktam rajadoso hi bhaviyati na sams'ayali I 
Pure janapade capi tatha balavadho hyayam II 

(ch. 73, 16-19> 

Yo hyadharmamakaryam va visaye parthivasya tu I 
Karoti cas'rtmulam tat pure va durmatir-narali II 
Ksipram ca narakam yati sa ca raja na sams'ayah I 

(ch. 74, 28-29> 


This is the fundamental reason for having different dharmas 
or rules for the same acts when done by women and non-dvijas r 
or by the young and the very old, by the diseased, or by persons 
in special situations (e.g. soldiers in camp, kings on the battle-field 
persons attending festivals, funerals, marriages, times of des r a- 
viplava or revolution) or by persons m this yuga as compared with 
those in former yugas. 



The locus classicus on the subject is the following passage in 
Sir Henry Maine's Ancient Law (ed. Pollock, p. 29) : 

" A general proposition of some value may be advanced with, 
respect to the agencies by which Law is brought into harmony 
with society. These instrumentalities seem to me to be three in 


number, Legal Fictions, Equity and Legislation. Their historical 
order is that in which I have placed them. Sometimes, two of them 
will be seen operating together, and there are legal systems which 
have escaped the influence of one or other of them. But I know 
of no instance in which the order of their appearance has been 
changed or inverted." 



My statement is in flat opposition to the basic idea of Mr. C. 
S'ankararama S'astn's scholarly work, Fictions in the Development 
of Hindu Law Texts, 1926. He has brought to his task knowledge 
of modern law, and familiarity with the technique and literature of 
Mimamsa. But he has succumbed to the influence of analogy, and 
finding that the nyayas of Mimamsa (which Col. G. A. Jacob 
would translate as ' popular maxims ') have helped the development 
of interpretation, he has taken them to be fictions. The assump- 
tion conceals two errors : the error of attributing to the Hindu 
thinkers and smartas, who handled the nyayas, an attitude 
of tepid belief or scepticism, which we now entertain and they 
-could not have had, and secondly, the mistake of overlooking 
the element of disbelief in the reality of the assumptions 
underlying ' legal fictions * which constitutes the real test of 
' fiction. 1 Maine's generalisation was based on his experience of 
European jurisprudence. There is no need to force the sense of 
non-European jural ideas to bring them within his generalisation. 
This is the temptation to which Mr. S'ankararama S'astri has 
yielded. The value of his work, as a helpful introduction to the 
Mimamsa way of approach to Hindu law, is not diminished sensibly 
by the wrong assumption with which he starts, and which gives the 
title to his book. Fictio in Roman law was a term of pleading 
and " signified a false averment on the part of the plaintiff which 
the defendant was not allowed to traverse ; such for example as 
that the plaintiff was a Roman citizen, when in truth he was a 


foreigner. The object of the fictions was, of course, to give juris- 
diction, and they therefore strongly resembled the allegations in the 
writs of the English Queen's Bench and Exchequer, by which 
those courts used to usurp the jurisdiction of Common Pleas : the 
allegation that the defendant was in the custody of the King's 
Marshal, or that the plaintiff was the King's debtor, and could not 
pay his debt by reason of the defendant's default. But I now 
employ the term Legal Fiction to signify any assumption which 
conceals, or affects to conceal, the fact that a rule of law has 
undergone alteration, its letter remaining unchanged, its operation 
being modified. . . . The fact is that the law has been 
changed , the fiction is that it remains what it always was." 
(Ancient Law, pp. 30-31.) 

Adoption is named as an example of fiction in Roman law. 
In Hindu law the belief in the adopted son being a real son, after 
adoption, is as vivid as the belief in the change which the Roman 
Church believes to have taken place in the Sacrament, which is- 
visible only to the eye of faith. 

The pursuit to its logical ends of the idea of the transform- 
ation of the dattaka (adoptee) into a real son in Hindu law will not 
have been possible if there had ever lurked, as it is bound to do- 
in fictions, a disbelief in the effectiveness of the transformation 
brought about by the datta-homa. The doctrine of spiritual benefit,, 
against which Maine has many a fling, was implicity believed in by 
those who applied it, and who were affected by it. To construe 
it as a fiction imposed by designing Brahamanas is not only injustice- 
to them but is a misreading of history. 



A telling instance is afforded in Mlmamsa literature, which* 
shows the modernism of S'abarasvSmin, the bhayakara, and another 
in bhaqyas of Dharmas'astra by Medhatithi. The ' modernism ' of 


S'abara is corrected by the much later Kumarila, Parthasarathi 
Mitfra and Madhava. The attitude revealed in smarta writings on 
such topics as women's property, ntyoga, and sahamarana, as well 
as melccha-pr&yascitta illustrate the dictum. Conservatism and 
liberalism are qualities of the mind which are not necessarily res- 
ponsive absolutely to environment or the time-spirit. 



Unity of thought constitues the bond uniting writers, who may 
be classed for convenience into " schools ", particularly if they can 
be seen as exercising reciprocal influence. Ordinarily such groups 
form around a teacher of eminence, whose influence is transmitted 
by his disciples, and their disciples, in uninterrupted succession. The 
existence of such groups in Artha&astra is well-known, as seven- 
teen of them are alluded to in the Kautihya, schools of rhetoric and 
grammar are also known, and of course of philosophy. The 
hypothesis of the dependence of smrti on s'ruti and the doctrine of 
ekavakyatvam, helped the attempts to fuse opinion and overcome 
discord. When in such matters as s r raddha t Mitramis'ra or 
Kamalakara criticises the views of the Maithilas, or the Gaudas, 
he merely implies that the views so classed enshrine wrong inter- 
pretations of rules. The arbitrary division of Hindu Law into 
schools is an achievement of modern lawyers. It has emphasised 
and stabilized differences of opinion, which were originally personal, 
by giving them a regional base, in spite of the fact that outside the 
field of customs, geography had nothing to do with opinion. To 
followers of Jimutavahana it is self -evident that the only views that 
should properly be enforced all over India are his, just as to the 
followers of other writers, like Vijnanesfvara, the opinions of their 
own sages must have equally wide pre-eminence. Common ances- 
try, physical or spiritual, need not create homogeneity in creed. 
This is shown by Kautilya's marked opposition to the views of his 
own teacher, by differences in rules or sutras belonging to a 

NOTES 113 

common vakha or Vedic branch, and by divergent views expressed 
by cousins like Nilakantba and Kamalakara, who had also a 
common spiritual ancestry, even on such topics of every-day appli- 
cability as the adoption of grown-up persons. 




Kautilya states thus his position in a passage on the conflict of 

laws. (Ill, 1) : 

Samsthaya Dharmas'astrena Sastram va Vyavaharikam I 
Yasminnarthe virudhyeta dharmenartham vinirnayet II 
Sastram vipratipadyeta dharman-nyayena kenacit I 
Nyayastatra pramanam syat tatra patho hi nas'yati II 

In a s'loka preceding those cited above, Kautilya declares that the 
king conquers the earth to the limits of the four quarters who 
follows Dharma, Vyavahara, Samstha and Nyaya : 

Anus'asaddhi dharmena vyavaharena sarnsthaya \ 
Nyayena ca caturthena caturantam mahlm jayet II 

Manu was contemptuous of those who showed disrespect towards 
the source of Dharma in Veda, and applied mere reason to deter- 
mine it, and ordained that they should be excommunicated as 
atheists and revilers of the Veda (II, 10) : 

Yo avamanyeta te m&le hetus'astra&rayat dvijah I 
Sa sadhubhir bahiskaryo nastiko vedanindakah II 
Yajnavalkya, though he held that Dhanna&astra was superior to 
Arthas'astra, admitted the superiority of the smrti, which was 
upheld by nyaya over that which was supported by vyavahara 
(rule of procedure) : 

Smrtyorvirodhe nyayastu balavan vyavahBratah \ 
Arthas'astrcittu balavad-dharmas'astram iti sthitfy \\ 



Narada (p. 17) admitted the force of nyaya in deciding on the 
validity of conflicting Dharma texts : 

Dharmas'astravirodhe tu yukti-yukto vidhih smrtafy. 
Brhaspati went further (ed. Rangaswami, I, 111) : 

Kevalam S'astramas'ritya na kartavyo vicaraqa I 
Yuktihlnavicare hi dharmahanih prajayate H 

In cases of conflict between two opposed Dharma text, Manu 
(II, 14) simply followed the old practice upheld by 'Gautama 

Dr&o dharmavyatikramafy I Sahasam ca mahatam I 
Na tu drtarthe avaradaurbaly&t tulyabalavirodhe 
vikalpah I 



The following passages of the Kautiliya will show how it was 
to be done : 

(1) In preparing a ' Domesday-survey ' the laws and customs 
have to be digested and recorded in a book : 

Des'a-grama-jati-kula-sanghatanam dharma-vyavahara 
carttra-samsthanam . . . nibandhapustakastham karayet. 
(p. 62) 

(2) The King should promulgate the recorded customs (p. 63) : 
pracarayaritrasamsthanam ca nibandhena prayaccet. 

(3) In a conquered country, for the purpose of pacification, 
he should establish its old laws and customs, (p. 408) : 

Caritram akrtam dharmyam krt ante any aih pravartayet I 
Pravartayenna cadharmyam kftam canyair-nivartayet. II 

NOTES 115 



Bhakti literature is full of citations in support of this pres- 
cription. For example, there are the injunctions of the Bhagavad- 
glta, which are merely illustrative : 

Purusah sa par ah Part ha bhaktya labhyastvanyaya I 
Yqsyantasthant bhutani yena sarvamidam tat am II 

(VIII, 22) 

Yanti devavrata devan pitrn yanti pitrvratah I 
Bhutam yanti bhutejya yanti madyajinopi mam \\ (IX, 24) 
Ksipram bhavati dharmatma s'asvat s r antim nigacchati I 
Kaunteya pratijanihi na me bhaktah pranasyati II (IX, 31) 
Mam hi Partha vyapas'ritya yepi syuli papayonyah I 
Striyo vaisyas-tatha s'Udrastepi yanti param gatim II 

(IX, 32) 

The Bhaktipraka&a of Vjramttrodaya cites this s'loka (p. 3-4) : 
Yat-karmabhtr yat-tapasa jnana-vatragyatasca yat I 
Yogena danadharmena s'reyobhiritarairapi 1 1 
Sarve mad-bhakttyogena mad-bhakto labhateHjasa H 



Brhaspati (ed. Rangaswami, p. 231, si. 4) : 

Tapo dharmah krtayuge ffianam tretayuge smrtam I 
Dvapare adhvarah proktas-ti?ye danam day a damah II 
The last three prescriptions may be compared to the words 
with which the inscription of Heliodorus at Besnagar ends : 

Sanskritised they read Trlni amrtapadani nayanti 
svargam : damah t tyagah, apramadah (E. J. Rapson, 
Ancient India, 1914, p. 157). 

See the praise of gifts (danapras'amsa) in Hemadri's Dana- 
khan da, (ed. Benares, I, pp. 4-13). 




See the passage from Medhatithi in the note below. 
The test of merit is harmony with Vedic injunction. Even 
in the case of Manusmrti to which pre-eminent authority has 
been given in a famous passage of Brhaspati (ed. Rangaswami, 
p. 233, si. 13) : 

Vedartha-pratibaddhatvat pramanyam tu Manofy smrtam I 
Manvartha-viparlta tu ya smrtih sa na s'asyate II 

the grounds of its superiority are stated to be its reliable repro- 
duction of the drift of the Vedas. This point is elaborated by 
Medhatithi in this comment on Manusmrti, II, 6, thus : 

" Now, as regards the work of Manu, what happened was 
that he got together pupils who had studied several Vedic texts, 
as also other Vedic scholars, and having heard from them the 
several texts, he compiled his work ; and he has therefore clearly 
stated that Vedic texts are the sources of what he has written, 
and thereby established the trustworthy character of his work. 
Others who came after him performed the several duties relying 
upon Manu's own words, and did not try to trace his words to their 
source in the Vedas. 1 ' (Dr. Ganganath Jha's Trn., I, p. 196). 



In commenting on Manusmrti, II, 6, Medhatithi, and inter- 
preting the word " smrti-s'lle " in the verse, says as follows : 
(Dr. Ganganath Jha's Trn., vol. I, pp. 204-205) : 

" There can be no reasonable ground for enumerating the 
names of smrtis (recollectors) as Manu, Visnu, Yama, Angiras, 
and so forth. For we find that many such persons as Paithinasi, 
Baudhayana, Pracetas and the rest are recognised by the wise 

NOTES 117 

and learned as reliable smartas (recollectors) and yet these names 
are not found in any of the lists (supplied by various smrtis). 

" What thus the words * smrtis'lle ca tadvidam ' mean is that 
* when a person is found to be recognised and spoken of by all 
wise and learned persons as endowed with the said qualifications, 
and they also accept a certain work as really by that person, the 
word of such a person (and of the work composed by him), even 
though proceeding from a human source, should be recognised as 
an authoritative source of the knowledge of Dharma. So that 
even at the present day, if there were a person possessed of the 
said qualifications, and he were to compose a work by reason of 
just those qualifications, then for later generations they would be 
accepted to be just as authoritative as the works of Manu and 
others. People of the present generation who would be contem- 
poraries of the said writer would not derive their knowledge of 
Dharma from the words of such a writer, because the sources 
of information available to him would all be available to them 
also. Hence it is that until a teacher of the present day indi- 
cates the source from which he has derived a certain information, 
learned people do not accept his words as reliable. When, how- 
ever, he has pointed out his source and his work has been accepted 
as authoritative, then at some future time, if the case of his work 
be found to be analogous to that of the smrti rules, regarding 
a$taka and other acts (whose basis in the Veda we of the present 
day can not find) it would be only right to infer its authoritative 
-character from the fact of its being accepted by the wise and the 
learned (which fact could not be explained except on the basis of 
its being duly authoritative)." 

The original passage is to be found on p. 64 of Mr. J. R. Ghar- 
pure's edition of Medhatithi and on vol. I, pp. 67-68 of Dr. Jha's edn.: 

Ata eva smart r-pariganana Manur-Vi$nur-Yamo-Angira iti 
ntrmula. Tatha hi Patthlnasi-Baudhayana-Pracetafy- 
prabhrtayah s'istair-evamrupassmaryante. Na ca pari- 
gananayam antarbhavitah. Sarvatha yamaviganena S'is- 
\alq, smaranti vadanti va evam vidhaih gunair-yuktam. 


Tena caitat-praqitam-iti tasya vakyaw satyapi pauru- 
eyatve dharme pramanam syat iti. * Smrtis'lle ca tad- 
vidam ' ityasyarthah. 

Adyatve ya evam-vidhatr-gunatr-yukta idr&ena eva ca hetuna 
grantham upa-mbadhniyat sa uttartresam Manvadtvat 
pramanl bhavet. Idanintananam tu yadeva tatra tasya 
bodhakaranam tadeva tesam astlti na tad-vakyad avagatify* 

Idanintano ht yavanmulam na dars'ayati tavanna vidvam- 
sah tadvakyam pramanayantt. Dar&ite tu mule pra- 
maqikrie granthe kalantare yadi kathancit atakadi-mula- 
tulyata syat, tada team s'ista-parigrahanyathanupapatya 
tan-mulanumanam yuktam. 



Two principles have by their liberal application helped greatly 
the development of Dharmas'astra. These are technically known 
as Atides'a and Prattmdhitvam. 

Atide&a may be described as the principle of extension of 
applicability by analogy or resemblance. Such extensions may 
be by analogy of (1) express or implied statement, vacanatides r a r 
(2) identity or similarity of nomenclature, namatides'a, (3) and 
indication of injunction, codanahngatatides'a. 

As a general illustration of atide&a, Gadadhara mentions the 
application of what appears in one context to another, ekatra 
S'rutasyanyatra sambandhaJt (Vyutpatti-vada). VScaspatya 
defines atides'a : Itaradharmasya itarasmin prayogaya ades>ah. 
Madhavacarya explains the principle thus : (Jattntnlya-nyaya- 
mala-vistarali, VII, v, i, 1) : 

Prakrtat-karmano yasmat tat-samane$u karmasu I 
Dharmopades'o yenasyat sotides'a iti smrtali II 

The two principles of atides'a and pratinidhitvam are con- 
nected by doctrine and application. 

NOTES 119 

Another familiar substitute is a fixed money payment for 
the baths and services, or penances (krcchra) prescribed for 

In law, the most conspicuous example of the application of 
the principle is the validity of substitutes for sons of the body 
(aurasa-putrati) in the son adopted (dattaka), bought (knta) given 
by himself (svayam-datta) etc. A substitute when allowed is held 
to be identical with the original. This supposition or belief leads 
to the principle of identity, what is equal to the original for pur- 
poses of substitution or representation, being regarded as identical 
with its original. Thus came deductions of the identity of husband 
and wife, father and son, son and daughter, master and servant, 
owner and slave etc. The logical corollary to identity is common 
personality, and the pratinidhi principle leads to the legal concept 
of common personality between husband and wife and parent and 
son, with its implications and consequences m law. 

The underlying idea in pratinidhitvam is the permissibility 
of the use of a substitute, m cases in which either the original can- 
not be secured or is rendered incompetent to officiate. The justi- 
fication for the use of the subsitute is resemblance, real or apparent 
(Tulyarupataya mukhyakarya-kantvarthe nidhlyamanatvam iti 
Nyayakos'a, p. 530). Thus, m a vaidika ceremony, in the absence 
of a real son, an adopted son is permitted to function. Or even 
other representatives are allowed m similar circumstances, as ruled 
by the Skandapurana m the following s'loka ; 

Putram ca vinayopteam bhaginlm bhrataram tatha I 
Esamabhava evanyam brahmanam vtntyojayet II 

Or again, in case the article enjoined for use in a vaidika 
ceremony is unavailable, a substitute may be used, as indicated 
in Srautasutras, e.g. Katyayana-svautasutra, I, 4. Thus the 
use of gold (hiranya), tandula (rice) as pratinidhi (substitute) 
for clarified butter (ajya) m sacrifices (yafita) or dana (gifts) 
is well-known. The following illustrate the pratinidhi principle 
in operation. 


Brhaspati (ed. Rangaswami, p. 208, si. 78) : 
5.jyam vina yatha tailam sadbhify pratinidhih smrtam \ 
Tathaikadas'a putrastu putrikaurasayorvinaK 
Yadyekajata bahavo bhratarastu sahodaraft I 
Ekasy&pi sute jate sarve te putrinaJt smrtali II 
Bahvlnam ekapatmnam e$a ever vidhtfy sin rial} I 
Eka cet putrutl tasam sarvasam pindadastu sah.\\ 
Satapatha-Brahmana (Trn. Eggeling, S.B.E., XLIV, 187) : 
" The father is the same as the son and the son the same as- 
the father ". 

Vajasaneya-Brahamana (cited by Kulluka, IX, 45) 
Ardho ha va ea atmanah tasmad-yad-jayam na 
vindate naitavat prajayate asravo hi tavad bhavati atha 
yadaiva jayam vindate atha prajayate ta hi sarvo bhavati,. 
tatha caitad-vedavido vipra vadanti yo bharta saiva 
bharya smrta. 
Manusmrtt, IX, 45 46 : 

Etavaneva puru$o yajjayatma prajeti ha I 

Viprah prahuh tatha caitadyo bharta sa smrtangana K 
Na nikraya-visargabhyant bhartur -bharya vimucyate I 
Evam dharmam vijanlmali prak-prajapati-nirmitam.\l 
Medhatithi on Manu, IX, 45 : 
Yasya bharya tasyapatyam : yasmat bharyayah bhartuscai- 


The enormity of a dispute between father and son is due to the 
principle of their identity (Manusmrti, III, 159 ; Gautama, XV, 19.) 
The principle is illustrated in the anonymous s'loka cited by 
the MitVksara (II, 32) : 

Guroh s'iye pituh putre dampatyoh svamibhrtyayofy I 

Virodhe tu mithastesam vyavaharo na siddhyati II 

*.e., " a suit will not lie between a preceptor and a pupil, a father 

and a son, between husband and wife, and between master and 

servant, even if they are on inimical terms/' But, as the strict 

NOTES 121 

application of this principle will lead to injustice and leave aggrieved 
sons, wives and servants without legal redress, the Mitak$ara 
indicates the pious character of the injunction and the obligation 
of the king to hear complaints from such persons, if, after 
they are advised to compose their differences, they insist on 
being heard : 

1 Drstadrtayoh s r reyaskaro na bhavati gurvadibhir-vya- 
vahara ' Hi prathamam s r iyadayo nivaranlyah rajtta sa- 
sabhyena iti ' guroh s'i$ye ' ityadi s'lokasya tatparyafy. 
Atyanta-nirbandhe tu s'isyadtflam apyuktaritya pravar- 
tarilyo vyavaharah. 

The excepted cases are those in which a father squanders 
property derived from the grandfather, the husband squanders the 
stridhanam, and a teacher chastises a pupil more severely than 
allowed by law. 

The principle of representation or substitution gave rise to the 
recognition of actions by * near friends * on behalf of minors, women 
and afflicted or disabled persons, and of agents (niyuktah), who 
were heard, as if they were principals, but with the distinct under- 
standing that, just as in religious sacrifices, the spiritual merit 
accrues not to the officiating priest but to the person on whose 
behalf he performs the ceremony, so in the case of suits, success and 
failure go to the principals and not to the agents. Parents, brothers 
and sons could plead or act in suits, even without specific authorisa- 
tion, which was required only for strangers. The interposition of 
unauthorised persons, claiming to act as agents, is punishable except 
in the above cases of near km : vide Brhaspati-smrti (ed. Ranga- 
swami), I, 137-138 ; Katyayana, (ed. Kane), v. 91, and Brhaspati> 
I, 171-2. The right of representation is denied in cases of serious 
crime, when the accused should plead in person : e.g. Katyayana, 
vv. 93-95. See Jimutavahana's Vyavaharamatrka, ed. Ashustosh 
Mookerji, pp. 287-288, and Varadaraja's Vyavaharanirnaya, ed. 
Rangaswami, pp. 33-35. 

The niyogakrt is the parent of the later mukhtyar and vakil. 




See Ancient Indian Polity, pp. 40-41. 

The rule of Kautilya imposing a severe punishment on those 
who become ascetics without providing for their wives and children, 
or who cause women to enter the ascetic order, is manifestly aimed 
against S'udras, who, under the influence of Buddhism, were 
entering the monastic order : 

Putradaramapratividhaya pravrajatah purvasahasadandah ; 
striyam ca pravrajayatafy . . . Vanaprasthadanyafy pra- 
vrajttabhavah . . . nasya janapadam upanives'eta (p. 48). 

The ascetic was both a celibate and a mendicant. 



Manusmrti enjoins due reverence to Brahmanas in IV, 39, 
52, 58, 135-136, 142, 162. The king is degraded by showing them 
irreverence, X, 43. Dr. Jayaswal held that the composition of the 
present Manusmrti (according to him) in the age of Pusyamitra is 
responsible for several claims put forward on behalf of the Brah- 
mana ; e.g., He is Isa in the sense of the ruler of the whole world, 
IX, 245 ; he is Is'vara (Ruler), for the protection of Dharma, I, 99 ; 
he is lord of everything (sarvasyadhipati) VIII, 37 ; and he is en- 
titled to all that exists (I, 100). See Jayaswal, Manu and Yajfta- 
valkya, passim, and particularly, pp. 102-104. 



See Note below on the similar references on p. 54 of the text. 

The Bharas'iva As'vatnedhas are referred to in the Dhammak 

and Siwani copper-plate inscriptions of Pravarasena II (Fleet, Gupta 

NOTES 123 

Inscriptions, pp. 235-249). Rudrasena I of the Vakataka dynasty 
is referred to as the daughter's son of " the illustrious Bhavanaga 
the Maharaja of the Bharas'ivas . . . who were spririkled with the 
pure water of the Bhagirathi that had been obtained by their valour, 
and who performed ablutions after the celebration of ten A^vamedha 
sacrifices " (p. 241). The translation is Fleet's and has been follow- 
ed by students of Indian history, and the Bharas'iva king is credited 
with the performances of a record number of AsVamedha sacrifices. 
The exact^expressions used are : 

siktanam Das'as'vamedha-vabhrtasnatanatn, Bharas'iva- 
nam, Maharaja Bhavanaga dauhitrasya 

They appear to me to mean only that Bhavanaga had a lustra! 
bath, after the performance of an As'vamedha at the famous 
Das'asvamedha ghat on the Ganges at Benares, whose sanctity is 
supposed to be derived from the performance there of As'vamedha 
sacrifices by Brahma himself. It also means that he had con- 
quered by his prowess (parakrama) the banks of the Ganges, 
probably Benares. 



The mother of Samudragupta was a princess of the Licchavi 
clan, which, though famous in the days of the Buddha, was regarded 
as an outcaste clan in the Gupta epoch. Thus Manusmrti classes 
them with other degraded castes of mixed origin ; 

Jhallo mallas'ca rajanyat vratyal-licchivireva ca I 
Natasca karanascaiva khaso dravida eva ca II 

The Manusmrti is ^re-Gupta on other evidence, and this origin 
ascribed to the powerful patrons of the Brahmanical revival in 
Magadha could not have been stated publicly during the hey-day 
of the Gupta empire. 




A column discovered at Besnagar near Bhilsa, in the extreme 
south of the Gwalior state, has the following inscription. The 
column must have been a flag-staff (dvajastambha) of a Visnu 
temple and been surmounted by the figure of Garuda. The text 
<>f the inscription reproduced here follows the reconstruction by 
Prof. E. J. Rapson (Ancient India, p. 157). See also J.R.A.S., 
1909, and 1910. 

Devadevasa Vasudevasa Garudadvaji ay am karite ia Helio- 
dorena Bhagavatena, Diyasa putrena, Takas f ilakena t 
Yona-dutena, agatena Maharajasa Antalikitasa upanta 
sakasam rajno Kas'iputrasa Bhagabhadrasa tratarasa 
vasena catudasemna rajena vadhamanasa tnni amuta- 
padani su anuthitani nayanati saga dama caga 


This Garuda column of Vasudeva, the god of gods, was 
erected here by Heliodorus, a worshipper of Visnu, the son of 
Dion, and an inhabitant of Taksas'ila, who came as Greek ambas- 
sador from the Great King Antialcidas to King Kaslputra Bhaga- 
bhadra, the Saviour, then reigning prosperously in the fourteenth 
year of his kingship. 

Three immortal precepts . . . when practised lead to Heaven : 
self-restraint, charity, and conscientiousness. 



On the basis of the inscriptions of Matrvisnu and Dhanyavisnu 
at Bran in Eastern Malwa, bearing the date 165 of the Gupta era, 
(i.e. A.D. 484-585), the late Mr. R. D. Banerji (History of India, 
p. 189) states that the Huns were worshippers of Visnu. The 

NOTES 125 

brothers dedicated a Garuda-dhvaja i.e. a flag-staff surmounted 
by the figure of Garuda, (Inscription No 19, pp. 88-90, J. F. Fleet, 
Gupta Inscriptions, Corpus Inscriptionum Indicaruin, III). In 
the inscription, the reigning king is referred to as Budhagupta* 
In a second inscription incised on the base of a colossal stone 
image of Visnu as JBhuvaraha (ibid., No. 36, pp. 158-161), 
the reigning king is referred to as Toramana, and the inscription 
is dated in the first year of his reign. The object of the 
inscription * s * recor d the building of the temple in which the 
image stands by Dhanyavisnu, the brother of Matrvisnu. Both 
brothers claim to have performed Vedic sacrifices, studied the 
scriptures, and to have been Brahamanarsi (Svakarmabhiratasya 
kratu-yajinodhlta-svadhyayasya viprarseh.) They claim to belong 
to the Maitrayamya-Sakha (Maitreyani vr^abhasya). The in- 
scription on the flag staff ends with the pious Brahmanical benedic- 
tion svastyastu go-brahmana-purogabhya sarva prajabhya iti. 



The assault of Purva-Mimamsa on Buddhism was direct. 
Rumania indicted Buddhism as opposed to the Veda, though he 
admitted (in order to take away any claim to originality of thought 
by the Buddhist) that the Buddhist systems owed their inspiration 
to the Upanisads. The assault on addiction to objects of sensual 
gratification is common to all serious thought, Upanisadic or Bud- 
dhist. Kumarila is definitely of the opinion that the Mimamsa- 
sutras of Jaimini contain criticisms of the views of Buddhists. 
This is his personal view, and should not weigh unduly in an 
estimation (as it has done) of the date of the Mimamsa-sutras. 
He was obsessed by his dislike of Buddhism, and might attribute 
to the founder of his school an equal dislike, overlooking the pos- 
sibility of his founder being ante-Buddha. Both Dr. A. B. Keith 
and Mr. P. V. Kane have affirmed the absence of any explicit 


reference to the Buddha or his doctrines in the sutras. Prof. 
G. V. Devasthali in a recent paper (Annals of the B.O.R.I., 1940, 
Vol. XXII) asserts that the only mention of the word Buddha in* 
the expression of Buddha-sastrat t which occurs, is not to the 
founder of Buddhism but is used in the sense of ' one who knows ' 
(Mimamsa-sutra, I, 2, 33.) He concludes that Jaimini lived before 
the Buddha, and that his date can not be later than 500 B.C. 

But, this does not take away the fact that the Mimamsa stood 
for the defence of the ritualism of the Veda for which the Buddhist 
had dislike. It " welcomes all philosophical views so long as 
as they do not injure its central theme, viz., the transcendent im- 
portance of Dhanna interpreted in the ritualistic sense. . . . The 
Veda is acknowledged as authoritative and its validity is established 
against the Buddhists, who dispute it, and the seekers of knowledge 
who subordinate Karma to Jnana. . . The Mimamsa accepts a 
realistic view of the world against the Buddhists." (Radhaknshnan, 
Indian Philosophy I, p. 375). 

The Buddhist is definitely attacked in Rumania's Slokavarttka, 
II, 169-172 : 

" 169. The falsity of the scriptures of the Buddha are proved 
by the fact of their being due to human agency. Their character 
(of falsity) could not belong to the Veda, because in its case there 
is no author (human agency). 

171-2. The assertions of the Buddha etc., that were brought 
forward by the atheists as examples to prove the unauthenticity of 
the Veda, are shown here to be non -concomitant. Because it has 
been shown above that the effects of these (Vedic assertions) are 

The identification of the Buddhist and the Atheist is old. 
Vasistha lumps the atheist and the man who becomes an 
out-caste by neglecting his duties (Karmacandala) and the latter is 
manifestly the Buddhist. Manu, (IX, 224-226) aims at Bud- 
dhists when he condemns " S'udras in the guise of Brahmanas- 
(s'udramsca dvijalinginah], atheists (pas'andas) and persons who 
abjure duty (vikarmasthali). Manu girds at Buddhists again in 

NOTES 127 

XII, 95, where they are characterised (correctly) as Veda-bahy8fy. 
The Vi$nupurana lumps the village-mendicant (monk) and the 
Jaina ascetic (Nirgrantho) as full of sins (bahudo$o) t and the allu- 
sion is to the Buddhist. The much later at-trimsanmata (post- 
Kumarila) is even more condemnatory and rules that the contami- 
nating touch of the Buddhist can be removed only by a bath with 
clothes on (p. 174) : 

Buddhan pas'upatan jainan lokayatika-kapil&n ' 
Vikatynasthan dvijan spr$tva sacelo jalamavis*et. II 

The restoration of the old Karma-marga, which was the aim 
of Rumania and his group, meant naturally hostility to Buddhism. 
The fantastic stories of a persecution of Buddhists organized under 
a (mythical) king by Rumania are the creations of the putrid 
imagination of later hagiologists, who treated of the life of Sankara. 
See Note lower down on the animus against the learned S'udra. 




See Radhakrishnan, Indian Philosophy, II, pp. 470-473, and 
496-497. Sir S. Radhakrishnan points out that "it is said, not 
without truth, that Brahmamsm killed Buddhism by a fraternal 
embrace. We have seen already how Brahmanism silently assimi- 
lated many Buddhist practices, condemned animal sacrifices, 
accepted Buddha as an avatar of Visnu, and thus absorbed the best 
elements of the Buddhist faith. Though the accidents of its first 
immediate form disappeared, Buddhism became, partly through 
Sfamkara's influence, a vital force in the life of the country. Bud- 
dhism created in the region of thought a certain atmosphere from 
which no mind could escape, and it undoubtedly exercised a far- 
reaching influence on S'amkara's mind. An Indian tradition 
opposed of S'amkara holds that he is a Buddhist in disguise and his 
maya-vada but crypto-Buddhism. . . . Yamunacarya, the spiritual 
grand-father of Ramanuja is of the same opinion which Ramanuja 


repeats. VijSanabhiksu, commenting on the Samkhya system, 
observes : " There is not a single Brahmasutra in which our 
bondage is declared to be due to mere ignorance. As to the novel 
theory of Maya propounded by persons calling themselves Vedantists, 
it is only a species of the subjective idealism of the Buddhists. 
The theory is not a tenet of the Vedanta.". . . These estimates 
imply that STamkara incorporated certain Buddhist elements such as 
the doctrine of maya and monasticism into the Vedanta philosophy." 
In a sense it may therefore be said that S'amkara stole the .Buddhists' 
thunder. That the "borrowing" is perhaps not direct but due to both 
Buddhist and Advaitic thought, being directly descended from the 
thought of the Upanisads, does not alter the effect on the displace- 
ment of Buddhist by the neo-Brahmanical, i.e. Vedantic thought. 
The personal orthodoxy of S'amkara will have given point to the 
change. " There are similarities between the views of Buddhism 
and the Advaita Vedanta." 

The Buddha had meanwhile been accepted as an avatar of Visnu. 

In some traditions he takes the place of Is'vara (i. e. S'iva) who 
is made to say (in the Padmapurana Uttarakhanda, ch. 236) that 
in the form of a Brahmana (?) he had himself declared in the Kaliyuga 
the false doctrine of Mayavada. The implication of the acceptance 
of the Buddha as an avatar of Visnu is that he re-appears as the 
champion of Vedic Dharma. That there is no incongruity in the 
legend will be manifest to those who remember that the Buddha 
lived and died a Hindu, and that the belief that he was opposed to 
the Vedas is not correct. 



He ends his allocution on purifactory rites for the restoration 
of the status of abducted women etc. with this declaration : 
Prayascittam samakyatam yathoktam Devalena tu \ 
Itare$am R$lnntn ca nanyatha vakyam arhata \\ 

NOTES 129 



King Bhoja of Dhara (Dhares'vara Bhojadeva, first half of the 
eleventh century A. D.) wrote many works among which the best 
known to smartas is his Bhupala-kriya-samuccaya, a digest on 
Dharms'astra from which citations occur in later nibandhas. The 
Mitak$ara t cites his views, but the Kalpataru makes no reference 
to him at all. His work is completely lost. See Mr. P. V. Kane's 
article on Bhojadeva inJ.B.B.R.A.S., 1925, pp. 223-224. 

Gopala is now established as the author of the Kamadhenu, 
another lost digest, not only by the mention of it by Candes'vara 
(Kane, op. cit., p. 295) but by an express declaration by Lakstnl- 
dhara in the verses introducing the Krtya-kalpataru. He is spoken 
as a " friend " (vayasya) of Laksmidhara and probably belonged to 
the same court. For VijfianesVara, Apararka and Laksmidhara, 
see my papers in the Madras Law Journal Golden Jubilee Volume 

The patron of Hemadri was Mahadeva, the Yadava king of 



Kulluka, the commentator on Manusmrti lived in Benares 
about A.D. 1250 (according to Mr. Kane, op. cit. t p. 363), while it 
was in the area under the Delhi Sultanate. Candes'vara (c. A.D. 
1300) was minister to a feudatory of the Sultan of Delhi* 
S'ridatta, author of the Acaradars'a, wrote in Mithila a little before 
Candes'vara. (Kane, p. 365). Harinatha, author of Smrtisara, a 
digest, which has not yet been printed, wrote in Mithila (?) a little 
after Candes'vara. VisVesVara Bhatta, the author of the Subodhim 
and the real author of the digest Madanaparijata, was probably a 
Telugu Brahamana, judging from his father's name Pedibhatfa, 


who wrote in the court of Madanapala the chief of Kastha, a little 
to the north of Delhi, in the days of Sultan Firuz Shah of the 
Tughlakh dynasty. Madanasimha, the author of the Madanaratna, 
another unprinted digest, wrote from near Delhi early in the 
fifteenth century. S'ulapani and Raghunandana in Bengal wrote 
when it was under the Muhammadans. So did Vacaspati Mis r ra. 
(author of the famous digest, Cintamaqi), who wrote when the 
area in which he lived was under the sphere of the influence of the 
Sultans of Jaunpur. Dalapati, the author of the digest^ Nrsimha- 
prasada wrote under the patronage of a Sultan of Ahmadnagar 
(c. 1500). The Bhatja family of Benares (which produced many 
writers on Dharmas'astra, like Narayana Bhajta, the author of 
Tristhalisetu and Prayogaratna, Kamalakara, Nilakanfha and 
Gagabhatfa) wrote at Benares in the heyday of Mughal rule. So 
did the not less famous family of the Kasl Dharmadhikarins, to 
which Nandapandita belonged. Mitramisra wrote in the reign of 
Jahangir and Todarmal in that of Akbar. Anantadeva, the author 
of the Smrti-kaustubha wrote in the reign of Aurangzebe. So did 
the famous NSgoji Bhatja under the aegis of a small chieftain near 
Allahabad, in the last days of Aurangzebe. In the illustrations the 
names of those who wrote under independent Hindu kingdoms in 
the Musalman period are not reckoned. 


42, //. 7-10. DVAITA-NIRNAYA 

Dvaita-nirnaya is a special form of composition. It came 
into vogue in the fifteenth century. The aim of the writers 
of this type of Smart a work was to settle, after canvassing 
Apparently opposed authorities, controverted topics in law or usage* 
It necessitates a mastery of Dharmavastra and Mlrnamsa. Works 
on it could be in prose or verse. The best known of these are the 
Dvaitantrnaya of Vacaspati Mis'ra (c. 1450), Dvaitaviveka of 
Vardhamana (c. 1500), and three Dvaitanirnayas by three members 
of the Bhatfa family of Benares, S'ankara and his son Damodara,. 
and his grandson Bhanu (c. 1580 to 1620). 

NOTES 131 




In the Gupta epoch the vinaya-sthapaka took the place of 
the pari$ad. In the Sukranlti, the Pandita is enjoined " to study 
the moral life obtaining in society m ancient and modern times 
which have been mentioned in the codes, which are now opposed 
and whicl^ go against the customs of the people, and to advise the 
king as to which of these are efficacious for this world and the 
next." He is a legal adviser. (Sukranlti II, vv. 200-203.) 




The opinion of Medhatithi is thus expressed in his comment 
on Manusmrti, VIII, 13 : 

T asmad-dharmam yamitesu sa vyavasyen-naradhipafy ' 
Ani^tam capyani^tesu tarn dharmam na vicalayet H 

i. e., the dharma of the king in favour of some and against others 
should not be transgressed. 

Medhatithi's explanation is that in the course of business and 
in consonance with dharma and custom the king may issue edicts 
which cannot be transgressed. As illustrations of such edicts or 
proclamations, Medhatithi gives such notifications as : 

' today, the city should observe a holiday? 
' all men should attend a marriage in the minister's house? 
' no animals shall be slaughtered today by the soldiers? 
' no birds shall be caught for so many days? 
1 for so many days dancing girls shall be entertained by the 
wealthy men ' (dancing jjirls being state slaves). 

" When such decrees are issued by the beat of the drum, they 
should not be disobeyed. But the king has no power over the 


ordinances relating to religious practices or dharma, nor on the 
rules of castes and stages of life, because any change of them will 
be contrary to smrti texts. Accordingly the text under interpre- 
tation (i. e., Manu, VII, 13) will apply in cases where the smrti 
texts are not offended against." 

Yatah sarva tejomayo raja tasmat hetoh mantri-purohite$u 
karyagatyn ' dharmam ' karyavastham s'astracaravirud- 
dham nis'dtya stapayet. Sa tadrs'i rajajna natikrama- 
niya. 4 Adya pure sarvaih utsavafy kartavyahj * Mantri- 
gehe vivaho vartate, tatra sarvaih sannidhatavyam , r 
Pas'avo nadya sainikaih hantavya, na s'akunayo bandha- 
yitavyalit ' Nartika dhanikaih aradhaniyah*. Evam vtdho 
atradharmahpatahaghoadtna raffia adi$tonatikramanlya* 
Na tu agnihotradi-dharma-vyavasthayai varnas'rinrinam 
rajaprabhavati, smrtyantara-virodha-prasangat. Avirodhe 
ca asmin visaye vacanasya arthatvat. 



The topic is of great value, as the alleged existence of the 
power is now relied on to support social legislation. In the 
adjudication of cases, four kinds of rules may be relied on. 
These are usually taken as dharma, vyavahara, caritra, and 
raja&asanam. What is the relative force of these between 
themselves ? They are interpreted as Smrti law, secular law 
custom and edicts of the king. Secular law is sometimes identified 
with Artha&astra rule. (e.g. Jayaswal, Manu and Yajnavalkya* 
pp. 13-16). The enumeration is identical in Kautilya, Yajfiavalkya, 
and Narada : 

Dharmasca vyavaharasca caritram rajas'asanam I 
VivadarthaS'Catuqpado. . . . 

The difference comes in the last quarter (pada) ; Kaujilya 
has (p. 150). 

NOTES 133 

Pascimafy purvabadhakafr (i.e. each following supersedes the 
preceding),while Narada rules (I, 10) : 

" Uttarafy purvabftdhakali " (i.e. what precedes over-rides what 

In a consideration of the place of the royal edict (Rajas'asanam) 
it would seem to be last in the list of applicable authorities, in the 
order of priority, according to Dharmas'astra and theirs* according 
to Arthas'astra. It would be an obvious interpretation to take the 
former as an extreme claim of the sacerdotalist and the latter of the 
regahst. But, the interpretation is barred, if one realises that 
Kautilya, if studied with care, is not in opposition to Dharmas'astra^ 
and that, on the other hand, his rules conform to it. S'ukra, who 
is also an Arthas'astra authority, gives the king power to declare 
the law, but it must be in accordance with Dharma and usage. 
He can not make a new law. The royal edict is merely declaratory, 
and not innovative. This is specially indicated by Katyayana (v. 38): 

, Nyaya-s'astra-avirodhena des'a-dristes-tathaiva ca I 

Yad-dharmam stapayet raja nyayyam tat rajas'asanam H 

The edict has to conform to dharma, nyaya and desacara if 
it is to be operative. Yajnavalkya refers to the edict as ' dharma 
as declared by the king ' (dharmo rajakrtasya tat). That the 
Arthas'astra can not supersede Dharmas'astra in any circumstances 
is declared in smrtis. Thus, YajSavalkya declares that Dharma- 
s'astra is more powerful (i.e., can over-ride) Arthas'astra (II, 21) : 
Arthayastrattu balavat dharmas'astram iti sthitiJi I 

The reference to Arthas'astra is held by the Mitakara to refer 
only to the Artha content of Dharmas'astra. See Ancient Indian 
Polity, pp. 164-170. 

Kautilya's rule of precedence will mean, under this interpreta- 
tion, that the order of preference placing edicts, usages, vyavahara 
(artha) and dharma as operative in sequence, simply implies that as 
every one of these should be in conformity with dharmavastra, and 
the king is enjoined to deal with causes in conformity with Dharma- 
s'astra (dharmas'astranusarena, YajSavalkya, II, l), the order 


which the courts will naturally follow proceeds from what is 
explicitly stated in an edict and discoverable custom to the smrti 
rules, which require skilled interpretation. The explanation will 
reconcile the contradiction, apparent, but not real. That Kautilya 
was fully conversant with the rules of interpretation, which 
were codified probably even before his time by the followers of 
Mimamsa will be evident to his readers. Further, lower down in 
the same passage and context, Kautilya lays down that Artha 
should be interpreted in term of Dharmas'astra (p. 150) : 

Samsthaya dharmas'astrena s'astram va vyavaharikam I 
Yasmin-narthe virudhyeta dharmena artham vinis'cayet II 

He also indicates the order of action of a successful ruler in 
regard to the four (p. 150) : 

Anu-s'asad-dhi dharmena vyavaharena samsthaya I 
Nyayena ca caturthena caturantam mahlm jayet II 

That rules of logic should be applied as well of intelligent, 
interpretation for maintaining the integrity of Dharmas'astra, and 
that they should not be read literally and unmtelhgently is laid 
down by Brhaspati (Vyav., II, 111) : 

Kevalam s f astramas f ritya na kartavyo hi nirnayah I 
Yukti'hma-vicare tu dharma-hanih prajayate II 

The s'astram in the above s'loka is obviously, from the context 


This will be clear from Manusmrti (VII, 28) which places 
Danda above the king : 

Dando hi sumahat-tejo durdharascakrtatmabhiji I 
Dharmat-vicalitam hanti nrpameva sa-bandhavam H 

Kautilya, p. 226, lays down that the court can punish even the 
Icing as it would punish a subject : 

NOTES 135 

Uttamaparamadhyatvam prade$ta dandakarmani \ 
Rafflasca prakrtinam ca kalpayet-antaranvitafy II 
In criminal cases the king himself was deemed a party as prosecutor* 
and in the case of state offences judgment could be given 
against him. 

The exaltation of Dharmas'astra as Dandanlti is the purpose 
of chapter 69 of the Santiparva of the Mahabharata, where occurs 
the famous expression Raja kalasya karanam, which has been 
incorrectly apprehended and used to support a claim for a residual 
power in a king, on account of his personal responsibility, to change 
law and usage m harmony with the time-spirit. (vide Note 
61 supra). 




The changes which As'oka is supposed to have made are the 
prohibition of the slaughter of animals, including the killing of 
animals at Vedic sacrifices, the prohibition of burning of chaff, and 
castration of animals, and changes in criminal law such as pardon- 
ing criminals on certain anniversaries. These are dealt with below 
seriatim m succeeding Notes. 

A Note above (95) which cites Medhatithi's views on the alleged 
power of the king to change law, shows that among the examples 
of permissible proclamations, which he gives, come the prohibition of 
the killing of animals and snaring of birds on certain days, as well 
as the prescription of festivities, of which examples are afforded by 
As'oka's edicts. 




Darwin mentions in the Da&akumaracarita (II, 44) that the 
Mauryas granted this boon to merchants that if they were found ta 


be in possession of stolen property, capital punishment should be 
excused in their case : 

" Maurya-datta e$a varo vanij&m t ldrs'eu aparadhesu 

nasti as'ubhih abhiyogah" 

The manifest thief was punished with death (Manusmrit, IX, 269) 
but one who was merely found in possession of stolen property, 
should not be put to death. " He who is taken with the stolen 
goods, and the implements of burglary, may without hesitation may 
be caused to be slain." ' 

Na hodena vina caurant ghat ay et dharmiko nrpah I 
Sahodam sopakaraqam, ghatayet avicarayan II 
Thus, under the old law, which is given by Manu, one who is only 
found with stolen property in his possession, and is obviously not 
the burglar, cannot be sentenced to death or summarily killed. 

The so-called vara (favour) of the Mauryas is nothing more 
than what Manu allows under the old law. If the Mauryas had 
declared it by edict, as implied by Dandin, it was only a case of 
declaring the existing law, not changing it. 

Further in dealing with cases of theft, as in other cases, the 
Dharmas'astra asks the circumstances to be taken into account. 
Thus the theft of agricultural implements, of arms, and of medicines 
should be dealt with only after the king has taken into account the 
time of the offence and the use to which the stolen object was 
put (Manustnrti, IX, 293). Traders get in the course of business 
property which might have been stolen. It would be obviously 
against the spirit of the Dharmas'astra to punish such persons with 
the death penalty. The example only proves that the Mauryas 
merely enforced Dharmas'astra, and did not change it. 



Astoka states in Pillar Edict IV : " Forasmuch as it is 
desirable that uniformity should exist in administration and in 

NOTES 137 

penal procedure, my orders extend so far, namely : ' To prisoners 
convicted and sentenced to death a respite of three days is granted 
by me.' During this interval the relatives of some atleast of the 
condemned men will invite them to deep meditation, hoping to save 
their lives, or, if that may not be so, they will present votive 
offerings and undergo fasts to promote the pious meditations of 
those about to die. 

For, my desire is that the condemned, even during their 
imprisonment, may gain the next world, and that among the people 
pious practices of various kinds may grow, along with self-restraint 
and generous liberality." (Vincent Smith's trn. vide his As>oka, 
1901, pp. 149-150). 

Dr. D. R. Bhandarkar (As>oka, 2nd edn., 1932, p. 342) offers a 
somewhat different rendering, which is given below : 

" For this is desirable what ? uniformity of administration 
and uniformity of punishment. And even so far goes my order : 
to men who are bound with fetters, on whom sentence has been 
passed, and who have been condemned to death, have I granted 
three days as something rightfully and exclusively their own. 
(In that interval) (their) relatives will indeed propitiate some 
(of the Rajukas) in order to grant their life ; and to propitiate 
Death, they (i.e. the convicts) will give alms and observe fasts 
pertaining to the next world. For my desire is that even when the 
time (for their living) has expired they may win the next world and 
that manifold pious practices, self-restraint and liberality may thus 
grow among the people." 


44, II. 21-27. ROYAL PARDON 

Manu takes away from the King the power to annul a sentence 
pronounced after a due enquiry in court (IX, 233) : 

Tlritam canus'i&am ca yatra kvacana udbhavet I 
Kftam tad-dharmato vidyat na tad bhuyo mvartayet \\ 
Manu lays down that the guilt of the killer of a BrShmana, 
goes to him who eats his food, the guilt of an adulterous wife 


falls on her negligent husband, the sinning pupil's and sacrificed 
guilt on the preceptor and teacher, and the thief s sin on the king 
who pardons him. 

Failure to punish the manifest thief is for the king a sin. 
When a thief, as laid down by the law (VIII, 314) approaches the 
king with streaming locks and confesses his guilt, he is free from sin 
whether he be sentenced or let off, " but the king, if he punishes 
not, takes upon himself the guilt of the thief." (VIII, 317). 

Even if he wishes to do so the king can not let off an old 
offender. (Vi&usmrti t III, 93). 


As'oka is usually held to have interdicted the performance of 
Vedic sacrifices throughout his kingdom, and thereby made a 
violent change in the practice and religious obligations of the 
Brahmanical community in his kingdom. The relevant passages in, 
the edicts are these : (l) " Here no animal may be slaughtered " 
(Rock Edict I) ; (2) by reason of Asoka's proclamations, the 
cessation of the slaughter of living creatures is growing (Rock 
Edict I V) ; (3) " Favours have been conferred by me on quadrupeds 
and bipeds, birds and aquatic animals, even up to the boon of life. 1 * 
(Pillar Edict II) ; (4) prohibition of the wanton destruction of certain 
named animals, (the k eating of which is prohibited by custom) and 
acts of cruelty on certain named days of the month (Pillar Edict V> 
26th year of his consecration as king) ! (5) " The growth ofDharma 
(in the kingdom) has been effected by regulation of Dharma and 
by exhortation, and of the two regulation is of minor account . . * 
such as the prohibition of the slaughter of such and such animals 
and other regulations of the kind." (Pillar Edict VII). 

Among these, the word " here " in clause 1 above is capable 
of interpretation as " here in the capital " or " in the Palace " 
(Bhandarkar, op. cit., p. 298) " ' iha ' has been taken by some to 
mean ' here, on this earth * and by others as ' here ' i.e. in Pafah- 
potra. But it had rather be taken to denote his ' palace or royaA 

NOTES 139 

establishment* because all other items mentioned in this edict 
are connected either with either As'oka personally or his royal 

The belief that As'oka created a furious opposition among his 
Brahmana subjects by forbidding yajHas involving animal sacrifices 
is baseless. The cost of a yajfta would have restricted the number 
of yajftas to be performed at any time. What the king probably 
did was to withdraw his patronage of sacrifices involving the 
slaughter of animals. It may be noted that there was no attempt at 
all at wholesale stoppage of the killing of animals, as is often 
assumed wrongly, 


44, //. 31-32. BRUNAHATYA 

Bruqahatya or the slaying of the embryo was a heinous crime 
from Vedic times. (Vide Eggehng's Trn. of the S atapatha-Brah- 
mana, Vol. XXVI, S.B.E., p. 19, XLIII, 272, and XLIV, 341n.) 

The castration of animals is punishable with a fine of 100 
panas, according to Visnusmrti quoted in Vivadaratnakara, p. 278. 
Kautilya imposes the highest fine for violence on those who " render 
animals impotent, or cause abortion by use of medicine to a female 
slave." (Arthas'astra, p. 198). Kautilya recommends a king, 
who has conquered a new kingdom, to conciliate the subjects by 
various regulations among which he specifies the prohibition of the 
slaughter of females and young ones among animals (yom-bala- 
vadham) as well as castration (ib. p. 407). This rule is suggestive, 
along with one just previous to it in the Arthavastra, enjoining 
the conqueror to prohibit the slaughter of animals in certain periods 
and certain days, including the royal birthdays, as this is what 
As'oka says he in the Fifth Pillar Edict (Smith, op. cit. t pp. 150-152). 



Dr. J. F. Fleet (J.R.A.S., 1908, pp. 491-497) argues that the 
Dhamma of the Rock and Pillar edicts is not Buddhist but merely 


the traditional Rajadbarma. Dr. J. M. Macphail rejects the idea 
that Asfoka's Dhamma stands for Buddhism. (As r oka, p. 48) and 
holds that it merely denotes piety. Dr. Vincent Smith (As'oka, p. 60) 
says : " The Dharma or Law of Piety which he preached and 
propagated unceasingly with amazing faith had few, if any, dis- 
tinctive features. The doctrines were essentially common to all 
Indian religions, although one sect or denomination might lay 
stress on one factor in it rather than on another." On an analysis 
of the various allocutions he addressed his subjects, r Dr. Smith 
finds that none of them are distinctive in the sense of not being 
Brahmanical. " The Dhamma of As'oka is Hindu Dharma with 
a difference " viz. its stressing ethical features rather than formal. 
Dr. R. K. Mookerji accepts the view. It is noteworthy that when 
As'oka lays down a ' close time ' in which no animals should be 
killed he selects just those days, viz. the full and new moon days, 
the fourteenth days and the eighth days after full or new moon 
(atami, caturdas'i, and parva) on which even Hindu meat-eaters 
abstain from eating animal food. (See Rock Edict V.) The animals 
which he forbids being killed for eating are generally those 
which the smrtis prohibit the eating of. Over and over again 
he enjoins respect for Brahmanas and ascetics. His plea for 
largesses and pious pilgrimages is only the inculcation of the Hindu 
Dharma to make danas and to go to tirthas. Without going so far 
as to claim that these show that the king was a follower of the old 
Brahmanism, it might be maintained that policy as well as convic- 
tion made him unwilling to change the rules of the old Dharma. 


45, //. 9-12. DHARMAVIJAYA 

That Asfoka's frequent references to Dharmavijaya are to be 
taken in the sense it has in the famous classification of Kautilya 
of conquests as Dharmavijaya, Lobhavijaya and Asuravijaya 
has been argued ably by Mr. V. R. Ramachandra Dikshitar in 
his Mauryan Polity, (1932, pp. 128-9, and 254-257). It is appro- 
priate to see in the edicts of Candragupta's grandson the use of 

NOTES 141 

well-known expressions popularised by Candragupta's great 
Minister, Kautilya. The translation of Dharmavijaya as * con- 
quest by piety,' as contrasted with ' conquest by arms *, which 
Dr. Hultzsch adopts (Inscriptions of As>oka, 1925, CJ.I. p. 53> 
is a forced interpretation, when compared with the technical sense 
of the word which should have been familiar to the Mauryan age*. 
The passage in the Arthas'astra where Dharmavijaya is defined 
(ed. Mysore, p. 380) runs thus : 

Trayo abhiyoktaro dharma-lobha-asura-vijayina iti I 
Te$amabhyavapatya dharmavijayl tuyati I 
Tamabhyapadyeta pareamapi bhayat I 
Bhumi-dravya-haranena lobha-vijayl tu$yati : tarn arthena 

abhipadhyeta I 
Bhumi-dravya-putra-dara-prana-haranena asuravijayl ; 

bhumi-dravyabhyam upagrhya agrahyah pratikurvlta 1 

The passage may be rendered thus : 

" (A weak king threatened with invasion may have to deafc 
with invaders of three kinds.) These are the Dharma-conqueror 
(Dharma-vijayl), the greedy conqueror (lobha-vijayl) and the de- 
moniac conqueror (Asura-vijayi). Of these the Dharmavijayi will 1 
be satisfied by acceptance of suzerainty through surrender. Such 
a conqueror should be submitted to through fear of attack by others- 
(as he will protect his vassal against others). The greedy invader,, 
afraid of enemies he might make, will be easily satisfied with 
treasure and territory ; so he should be bought off by money. The 
demoniac invader (Asura-vijayl) will not rest content with merely 
taking the kingdom, treasure, sons and wives of the conquered king" 
Him the weak king should keep off by surrender of territory and 
wealth, and remain unassailed. (Against all of them, when they 
have begun the invasion, one should war by offers of peace and 
friendship, diplomacy and treacherous action.) " 

In Rock Edict XIII describing the conquest of Kajinga,. 
As'oka expresses his passionate grief at the evils which the war* 


entailed on innocent persons, combatants and non-combatants, 
including the terrible sufferings Br&hmanas, ascetics and house- 
holders, and his resolve to conquer thenceforth only through 
Dharmavijaya and the success he has had by the change of 
policy. " He is now able to spread his benign influence even in 
regions as distant as 600 yojanas, where dwell the Yavana king 
^called Antiochus, the four kings called Ptolemy, Antigonus, Magas 
and Alexander, likewise down below, where are the Colas, the 
Pandyas, as far as the Tambraparni, likewise in the t^pme domi- 
nions among the Yavanas, Kambhojas, Nabhakas and Nabha- 
pantis, the herditary Bhoja chiefs, the Andhras and Paimdas and 
find them all practising the Dharma which he has sought to spread, 
.and they are rilled with love to him." " That love " he continues 
" has been attained by me through Dharmavijaya " by sending his 
-envoys to distant regions. 

This is a clear declaration by Astoka of his preference of the 
method of extending his suzerainty or sphere of influence without 
recourse to arms as against the policy of force and violence which 
succeeded in Kalinga, when he conquered and annexed it early in 
his reign. 

The Dharmavijaya is what is inculcated in Rajadharma by 
the Dharmas'astras, where it is suggested that as far as possible 
recourse to arms should be avoided, and after victory in battle, if 
-a battle becomes inevitable, no harassment of the conquered royal 
family or people should be permitted. The war itself should be 
conducted as a Dharma war (Dharma-yuddha) ; see Rajadharma- 
kalpataru, ed. Rangaswami, pp. 125 ff. The desire for suzerainty 
or extension of supremacy is justified even by resort to war by 
S'ankha-likhita (op. cit. p. 125) on the ground that a king, as a 
k$atriya has the duty to perform the horse-sacrifice (as'vamedha), 
which can be done only by the accumulation of immense resources and 
by the subordination of other kings. Manu's in junction (VII, 198-199) 
to obtain the end by negotiation or gifts, and never by recourse to 
*war, because the fortunes of war are uncertain, is cited by Lakmi- 
<dhara in his treatment of the subject in RajadharmakanQa of the 

NOTES 143 

KALPATARU along with similar injunction. The difference between? 
the king to whom these recommendations are made and the king' 
in Kautilya is that the former is assumed to possess the strength 
to conquer, whereas Kautilya's advice is to the weak ruler who is. 
afraid of the designs of war-like neighbours, who might, according 
to their disposition be one of the three classes of conquerors. 



Dealing with Rastrakuta administration, Dr. A. S. Altekar 
writes as follows in his Rastrakufas and their Times, 1934, p. 169 : 

" The place of Purohita was taken in our period by an officer 
whose business it was to exercise general superintendence over 
religion and morality. Pandita, the Minister of morality and reli- 
gion in Sukraniti, seems to embody the tradition of the Dhamma- 
tnahft-amatyas of As'oka, and the Samaria -mahnmat as of the 
Andhras (Nasik inscriptions in Epig. Jnd. VIII, p. 91) and th 
Vinayasthitisthapakas of the Guptas. The tradition was con- 
tinued in the north by the Cedis, one of whose records (Kumbhi 
plates of Vijayasimha. J.A.S.B., xxxi, p. 116) mentions Dharma- 
pradhftna in addition to the Maha-purohita. The office existed 
under the early Rastrakuta ruler Nanna-raja in A.D. 708, and the 
officer bore the significant title of Dharmankus'a" (Ind. Ant. 
xvih, p. 230). Sukranlti employs the Pradvivaka (who is the 
same as Dhannadhikarf) to select from Dharmas, ancient and 
modern, those which should be followed and bring them to the 
notice of the king. (II, si. 100). 




From the Hiraha^agalli grant (Epig. Ind., I, 5 and VI, 88) 
dated in the eighth year of his reign, we learn that the early Pal lava 
king S'ivaskandavarman (c. 200 A.D.) had the title of Dharma- 
maharaja (R. Gopalan, History of the Pallavas of South 


1928, p. 37). Simhavarman, II, the son of Visu-gopavarman, ac- 
cording to the Mangadur gtfint (Ind. Ant., V, p. 155) had also the 
title of Dharntamaharaja. (c. 450 A.D.) Mahendravarman (A.D. 
600-630) styles himself Mahabhuta Sa-dharma, which is equal 
to Dharma- Maharaja in the introduction to Mattavilasaprahasana 
(Travancore Sanskrit Series, Iv, p. 3). The name Dharmaraja- 
ratha by which the rock-cut temple at Mahabalipuram is known, 
and which Dr. . Hultzsch regarded as made in the reign of the 
great Narasimhavaraman I, was probably so called because he was 
known as Dharma-raja. 

Dr. K. P. Jayaswal (History of India, p. 184) gives a fanciful 
interpretation of the title. He suggests that it was "a Hindu 
edition or rather a Hindu counter-title of the Kusan Daivaputra 
ahunuahi. Instead of being a Daivaputra, the Pallava king 
bases his claim on his adherence to the orthodox law and orthodox 
civilisation, which was quite in conformity with the law of the 
Hindu constitution. He was substituting Dharma for the divine 
Daivaputra" I see no motive in the selection of the title other 
than that suggested in the text. 


The founder of the Kadamba dynasty, Mayura-s'arma (A.D. 
345-370), came of a Brahmana family devoted to the study of the 
Vedas and the performance of sacrificial rites. In the Talaguijda 
inscription (Epigraphia Carnatica, VII, Into., p. 9) his name 
appears with the Brahmana suffix s r arman. This is replaced by 
the K$atriya suffix varman, by which he is known in all subsequent 
records. As Brahtnanas the Kadambas could not have rightfully 
become kings. Mrges'vara-varma, the seventh ruler of the dynasty, 
is styled in an inscription of his queen as Dharnta- Maharaja 

Dr. Jayaswal suggests, without sufficient reason, that the 
Kadambas and the Gangas assumed the title, because they were 
under the Pallava empire. (History of India, p. 199). 

NOTES 145 



For instances see M. V. Krishna Rao, Gangas of Talk ad > 
1956, pp. 120-123. Madhava Kongani-varma (c. 430 A. D.) was 
known as Kongarjii-varma Dharma- M a hadhir&ja. " In the 
Uttanur plates (Madras Epigraphist's Report, 1916, p. 35) Durvinlta 
is compared to Vaivasvata-Manu (A. D. 853-869). Nitimarga is 
lauded as the foremost of kings following Nitisara. Marasimha 
(A. D. 960-970) the son of Butuga II, took the title of Dharma- 
avatara : * incarnation of Dharma * (Fleet, Dynasties of the Kana- 
rese Districts, in the Bombay Gazetteer, I, i, p. 305)." 



The Kaundmya ruler of Campa Bhadravarman (c. A. D. 400) 
as Dharma- Maharaja (R. C. Majumdar, Campa, 1927, III, Ins* 
2, p. 3) Dr. Jayaswal considers that the Kaundinya dynasty of 
Campa was founded by a scion of an old and respected dynasty 
from North India, which had settled in the Pallava kingdom, from 
which the migration apparently took place to Campa (History of 
India, pp. 169-170). The inscription of Bhadravarman on the 
Cho Dink rock is in Sanskrit prose and refers to a sacrifice per- 
formed by the king before S'lva as Bhadres'vara. 



R&jakesari Rajamahendra, who was chosen as heir-apparent 
to the Co}a throne in A. D. 1059, has left three records in which the 
opening pras r asti begins thus : Manu-mti-murai-valara, i.e., May 
the righteousness of Manu duly increase. The Colas claimed 
descent from Manu. A mythical ancestor of the Cola dynasty, 
named Manu Coja, is said to have sentenced his son to be killed by 
having a chariot driven over him, as he had killed a calf by running 


over it, and the bereaved cow complained to the just king. (Nila- 
kanjha S'astri, Colas, I, 1936, p. 12). An inscription states that the 
king followed the laws of Manu and collected only one-sixth of the 
produce of land (ibid. p. II, p. 327). Rajendra II (ace. A. D. 1246) 
begins his inscriptions with the words Manukulam-eduttu neri- 
mudi-sudi-aruliya i. e. He who having assumed the righteous 
crown of the line of Manu. 


vide Raghuvams'a, I, 17 : 

Rekhamatramapi ksunnad a-Manor-vartmanah param \ 
i. e.. He (Dilipa) did not swerve even to the extent of a line from 
the path of Manu. 


45, //. 24-29. EVILS OF ANARCHY (Arajata) 

For the evils of interregnums, owing to the demise of kings, 

and of king-lessness, t. e. t arajata, see Ram ay an a, II, 67, where 

the following s'lokas occur : 

Narajake janapade yajnas'lla dvijadayalt I 
Satranyanvasate danta brahmanah sams'itavratah \\ (13) 
Narajake janapade tnahayajHe^u yajvanah I 
Brahmanah vasu-sampurnah visrjantyaptadak$inah II (14) 
Narajake janapade malya-modaka dak$inah \ 
Devatabhyarcari&rthaya kalpyante niyatair-janaih II (27) 
Narajake janapade svakam bhavati kasyacit. \ 
Matsya ivajana nityam bhak$ayantah parasparam II (31) 

See 66 also Makabharata, S'antiparva, LIX, (LVI, Kumbakonam 

ed. 2, 3, 16) : 

Arajakeu ratfre$u dharmo na vyavatt$tate I 
Parasparam ca khadanti sarvatha dhik-arajakatn II (3) 
Narajake^u rastre$u havyant vahati pavakah. \ (5) 
Raja cenna bhavelloke prthivya dan$a~dharakak \\ 
J ale matsyannivabhakfyan durbalam balavattarah I (16) 

NOTES 147 

See also Kamandaka, Nltisara, II, 40 : 

Parasparami$ataya jagato bhinnavartmanah I 
Dandabhave paridhvamsl matsyo nyayah pravartate H 

See also Matsyapurana, ch. 225, 8-9 : 

Yatra syamo lohitako Dandascarati nirbhayah \ 
Prajastatra na muhyanti neta cet sadhu pa&yati II 
Balavrddhatura-yati-dhvija-stri-vidhava yatah I 

Matsyannyayena bhaksyeran yadi dandam na patayet II 

Dr. K. P. Jayaswal, against the sense of the contexts in which 

these passages occur, took the term A -Raj at a to mean a kingless 
constitution. (Hindu Polity, 1924, pt. i, pp. 41, 97, 98, 100, 134.) 



The Indian view of foreign rule is given in the Puranas, whose 
evidence is thus summarised by Dr. K. P. Jayaswal (History of 
India, A.D. 150 to 350, 1933, pp. 151-2) : 

"The S'akas not only disregarded the orthodox system but 
they imposed a system of social tyranny. The country under 
them was encouraged or forced to follow their manners, ethics and 
religious theories : Tannathaste janapadas tac-chllacara-vadinah 
The Mleccha kings followed the general practice of their race, 
exacted illegal taxes : 

Prajaste bhaksayisyanti mleccha rajanya-rnpinah I 
They killed and massacred even women and children. They 
killed cows. They killed Brahmanas, and they took away the wives 
and wealth of others : 

Strl'bala-go-dvijaghnas ca para-dara-dhana-hftalt I 

They were never crowned, i.e., legal kings according to Hindu 
law. They indulged in constant dynastic revolutions among 
themselves : 

Hatva catva parasparam ; uditodita-vams'as-tu uditastam- 
itastatha \ 


"There was thus a national cry, expressed in the PurSna texts, 
practically inviting the Gupta emperors and the Hindus of the 
time to eradicate this lingering canker in the North* western 
corner an operation which Candragupta II was obliged to 
perform, and which he performed successfully." 



The expression apasta-kalibhify occurs in the versee introduc- 
ing the Krtya-Kalpataru of Laksmidhara the Minister of Govmda- 
candra of Kanauj (A.D. 1110-1154), and reflects similar expressions 
in the Gahadvala grants. 


46, //. 25-29. EDUCATION OF PRINCES 

The curriculum of studies, which Kautilya and later writers 
prescribe for the future king, is elaborate. The * three Rs ' 
are to be learnt before upanayana. The Veda and philos- 
ophy, especially the systems of Samkhya, Yoga and Loka- 
yata, are to be studied along with the angas of the Veda, viz. 
grammar, exegetics, phonetics, metre, and ritual. Anvik$tki (Logic, 
Ethics and Metaphysics, according to the Somadeva) was to be 
a special study. Apart from theoretical studies, the prince is to 
learn the art of administration from officers of experience as well 
as Economics (Varta) and Dandaniti. He is to become proficient 
in the use of arms, and in secular history, traditions, Arthas'a$tra 
and Dhartnas'astra, after he attains his sixteenth year. This 
formidable list of subjects must keep a prince pretty fully engaged 
till he is called to the throne. (See my Ancient Indian Polity, 
1935, pp. 38-39.) 



Caritra or usage is recognized as a source of Dharma from 
early times. Apastamba (II, 15, 1) refers to de&a-kula-dharm&b 

NOTES 149 

*.*., local and family custom. Gautama (XI, 13, 20-22) declares 
that local caste, and family usage, not opposed to Sruti, have the 
force of law and so have the customs of cultivators, tradesmen, 
herdsmen, money-lenders and artisans ; and these usages have to 
be ascertained before a decision is arrived at. Vasistha (I, 17) 
cites the authority of Manu for declaring the applicability of local, 
caste and family customs "m the absence of revealed texts." 
Baudhayana, after reciting five disputed usages of the South, 
{I, 2, 1-4X declares that such usages are valid in the countries 
where they prevail (I, 2, 5-6). Kautilya directs a survey of 
customs in the empire, and apparently the Mauryan empire main- 
tained such a record as the British have attempted to do in the 
'Case of the castes of the Punjab (Griffin, Tupper) and the Southern 
Maratha country (Steele) : 

Des'a -grama-kula-samghatanam dharma-vyavahara-cari- 

. . . Nibandha-pustakastham karayet. (Arthas'astra, p. 62) 

Manu recognises caste-usage for all the four varnas (II, 18) 
and local, guild and family usage (VIII, 41). The king should 
decide cases according to both Dharma and local usage (VIII, 3). 
Yajnavalkya gives precedence to local custom (I, 343) in the 
administration of justice. The King must punish members of clans 
(kula), castes, (jatt) 9 guilds (s'rent), corporations and provinces* 
who depart from their respective customs (I, 361). The adminis- 
tration of civil law should not violate smrti rules or usage (II, 5). 
The usages of guilds etc., are termed samayali (conventions), and 
the king should enforce them, when not opposed to true Dharma 
(II, 186). Dr. Jayaswal maintains that such samayas do not con- 
stitute real customary law but represent delgated legislation. (Manu 
and YajHavalkya, p. 76). 

Brhaspati declares emphatically the inexpediency of not 
maintaining the usages of localities, castes and kulas, as the 
people will get discontented (if they are not maintained) and 
the king's strength and wealth will suffer thereby. (I, 126, in my 


edition). Vijff&nes'vara, in discussing Yajfiavalkya, II, 118-119 
declares that the texts on succession and partition mostly repeat 
what actually prevails in the country. (Lokasiddhasya anuvada- 
kanyeva pr$yena asmin prakarane vacanani). Mitramis'ra (Vira- 
mitrodaya), says : " All nibandhakaras recognise that smrtis 
on civil law simply embody recognised usage." (Prayena vyava- 
harasmrtinam lokasiddharthanuvadakatvam iti sakala-niban- 
dhrbhih abhidhanat.). Nilakarjttha says : " the science of judicial 
administration is based like grammar on usage", (frn. Kane, 
1933, p. 169). 

Manu lays down the rule of following family usage (IV, 178) : 

Yenasya pitaro yatah yena yatah pitamahafy \ 

Tena yayat satam margam tena gacchan na nisyate II 

The path by which one's fathers have gone, and that by 
which grandfathers have gone, by following it, one moves on the 
path of the good, and by following it he does not sin ! * 

The verse may be described as a charter of conservatism. 

The theoretical basis of the validity of custom, according to 
Mlmamsa, is that it derives its authority from a lost or latent 
smrti or srruti text. But, as one has to make two presumptions 
to secure recognition to usage, as against one for a smrti rule,, 
usage is held to be inferior to explicit smrti rule. 

Jaimini's aphorism (I, in, 7) that s'istacara is valid without 
reference to its causes is to be limited to wordly matters- 
(K. L. Sarkar, Mimamsa Rules of Interpretation as applied to 
Hindu Law Texts, 1909, p. 74 and pp. 238-239.) 


47, II. 25-26. EQUAL VALIDITY OF ALL TEXTS. Ekavakyatvam 
Ekavakyatvam has been regarded as a conspicuous example 
of " legal fiction " which has been useful in the development of 
Dharmas'&stra and Hindu law. (S'ankararama S'astri, op. cit.,. 
p. 170). 

NOTES 151 

Absolute unanimity and concord are held to exist between all 
smrti texts on the same subject and all s>ruti passages also. The 
presumption is warranted by the fundamental assumptions of 
Mimamsa that the source of all law, and of all knowledge is the 
Veda, and that the Veda is eternal, infallible, universal and derives 
its authority from itself. It does not recognise any growth in the 
Veda or any possibility of evolution in Veda or smrti. Homogene- 
ity is a characteristic of the Veda. Self-consistency is its mark. 
The idea, is signified as Ekavakyatva. The consequences of the 
presumptions are that consistency and harmony must be deemed to 
exist between one Veda and another, between one passage of 
S'ruti and all others, between one smrti and another, and between 
s'ruti and smrti, as well as between smrti and acara (custom, 
usage). The ffakhantaradhikarana section of PurvamimUmasa 
maintains that all s'akhas speak with one voice. Inconsistency 
between smrti precepts, as in the rules of marriage of BrahmaQas 
with women of the other three castes (Manu permitting all three, 
Yajfiavalkya permitting only marriage with k$atriya and vaisya 
women and later smartas prohibiting marriage outside his own 
caste to the Brahmana) or the practice of niyoga, is explained away 
by the doctrine of limited applicability to particular epochs, or ages. 
The remarriage of women in the five cases sanctioned by ParaVara 
(IV, 30), is rejected on the ground of Kalivarjya, and as simply 
repeating an old and defunct rule. (Madhavacarya's commentary 
on I, 34). Similarly, by the application of the principle of har- 
mony involved in this nyaya, smrti rules have to be harmonised with 
valid usage (samayacara) and should be rejected if contravening 
them (virodhe). Many illustrations of the way in which this nyaya 
has been applied by commentators and smartas are quoted and 
explained by Mr. C. Sfenkararama S'astri (Fictio 
pp. 142 ff.) On the application of this ] 
flicts, the doctrine that acara or usage, wh 
of si&has (the elect), gives rise to apparent < 
acts condemned by conscience or smrti j 
characters of the past. Are such 


answer is ' No ', because the test of valid conduct is whether it 
has been pursued by its author with the consciousness of doing 
a thing which is meritorious. Accordingly, the moral lapses of 
old sages, heroes and gods, are no precedents. (Fictions in Hindu 
Law, p. 138). 



The question of their admissibility is thus Mitra- 
misTa (Vlramitrodaya, Paribhasa-prakas'a, pp. 17-18) : 

* 4 In several works of authority, certain quotations occur, which 
are introduced merely thus ; 4 to this effect is the smrti ' * to this effect 
is the s'loka'. (The authorship is indeterminate). Such quota- 
tions are authoritative in as much as they have been unequivocally 
accepted by great men. What is styled Sat-trimyanmatam is 
not so authoritative, according to the Kalpataru, because it is 
accepted only by some, being rejected by others. Bur Vijfianesf- 
vara, Apararka, S'ulapani and others regard its citation as authori- 
tative. This is only proper." 

Y adapt smart rnama anirdisya * atra stnrtih * ' atra s'lokah r 
ityadi pramanika-Ukhanam, tadapi aviglta-mahajana- 
Parigrhltatvatpramanam. ' Smrtyantaresu' ca ityanenaiva 
samgrhltam veditavyam. ' Sat-trimanmatadikam ' tu 
kais'ddeva parigrhttatvat apramanam ityuktam Kalpata- 
runa. Vijftanes'vara-Apararka-STdapam'prabhrtibhist'u 
pramanattvena parigrhltatn. Yuktam ca etat ." 



The rule of equity and good conscience is implicit in the 
dicta of Manu and Yajfiavalkya on the " feeling of satisfaction, 
which the good get " (Sadhunam atmanastuti]i t Manu, II, 6) and 
what one finds to one's liking (svasya ca priyamatmanah), (Manu, 
II, 12, and YSjfiavalkya, I, 7), To guard against caprice being 

NOTES 153 

taken as equivalent to conscience, the commentators explain that 
the satisfaction should be that which only those who are both 
learned in the Vedas and righteous feel, thereby relieving each man 
of the privilege of deciding what he should do according to his 
likes and dislikes. Medhatithi points out (ed. Jha, I, pp. 68-69) 
that the trustworthy character of such learned and good men is 
the guarantee of its not being misused. " When the learned and 
good feel satisfied as to the righteousness of an action, it must 
be taken s right, because such men will never feel satisfied with 
anything that is wrong." 

But equity and good conscience can not over-ride clear law 
or revealed text. This is made clear by Vis'varupa (YajHa., 

I, 7, vol. I, pp. 13-27) who points out that the satisfaction which 
one feels should not be in action which runs counter to Vedic 
injunction, or smrti or is due merely to fidgets. Kulluka (Manu t 

II, 6) lays down that " self-satisfaction " is authoritative only in 
regard to matters in which an option is open, following the Mitak- 
$ara which rules that the rule of satisfaction applies only to cases 
in which there are several lawful alternatives open, one of which 
has to be chosen. This is also the view of the Smrticandrika 
(Samskarakaqda, 5). 

47, Z. 29. INSIGHT OR INTUITION (Yukti) 

The application of reason, or the power of inference to the 
resolution of difficulties in evidence is suggested in the law books 
e.g. Yajfiavalkya, II, 212. Vi$nusmrti recommends the appli- 
cation of reason (yukti) to the determination of the genuineness of 
documents. Vyasa, Prajapati and other writers advocate the use 
of yukti for the proper construction of documents. But the most 
powerful advocate of the application of yukti is Brhaspati. Over 
and over again he says (XXVI, 4, 49, 50 in Vyavaharakanda) that 
the determination should be in accordance with intelligent apprehen- 
sion (yukti) as otherwise there will be disaster : 

Yuktya vibhajaniyam tat, anyatha anarthakam bhavet \ 


He illustrates the disastrous effect of the failure to apply yukti 
to determine whether one is a thief or not, a good man or not, 
by the condemnation of the sage Mandavya for theft : 

Cauro-acauro sadhvasadhuh jay ate vyavaharatafy I 
Yuktim vina vicareria Mandavyas'-coratam gatafy H 

(Vyav., I, 116) 

He would apply it to determine the preference in cases of conflict 

of laws : 

Dharntas'astra-virodhe tu yukti yukto vidhify* smTtali \ 
(tb. IX, 8) 

He denounces vigorously in a famous verse dependence on the 

letter of the written law (yastra i.e., smrti) without an intelligent 

conception of the spirit through yukti : 

Kevalam S'astram-as'ritya na vaktavyo vinirnayah \ 
Yukti-hine vicare tu Dharma-hanih prajayate H 

(fWrf.,1, 114) 

41 A decision should not be arrived at by solely depending on the 

s'astra, for, in an enquiry devoid of the application of reason 

(yukti) , there is destruction of Dharma." 

It is natural that with such powerful sanction as Brhaspati's, 

King SomesVara should enjoin the magistrate to award sentences, 

not by mechanically following smrti precept, but by the exercise of 

his own reason (yukti) : 

Pramane nis'titaivapi divyair vapi vicarite I 

Yuktya datidam nrpah kuryat yatha do$anusaratah \\ 

Manasollasa, ed. Gaekwad's Oriental Series, v. 1286. This is a 
conspicuous illustration of the extended scope of the application of 
yukti by a king of the twelfth century. 



Todarananda and Vlramitrodaya> Vyavaharaprakas'a, (ed. 
Jivananda, p. 120) cite the following verse from Katyayana : 

NOTES 155 

Pratiloma-prasuteu tat ha durga-nivasi$u I 

Viruddham ntyatam prahuh tarn dharmam na vicalayet H 

i.e. " (The King) should not disregard the fixed rules of conduct 
among those who belong to the pratiloma castes and among the 
inhabitants of the forts (or inaccessible mountain places) even if 
they are opposed (to rules of smrti.) " (Trn. Kane, Katyayana, 
1933, p. 125.) 

The rule in a slightly different form is cited by Laksmidhara 
in Vyavakarakalpataru as from Brhaspati : 

Pratilomaprasutanam tatha durga-nivasinam 1 
Sastravad yatnato rakya sandigdhau sadhanam tu sa II 
One of pratiloma birth was deemed so degraded that to call a 
person a pratilomaja was an offence (Yajftavalkya, II, 207.) 



Manu gives the sources of Dharma in the following s-loka : 
Vedo akhilo dharma-mulam Smrti-s'ile ca tad-vidaml 
.caras'caiva sadhunam atmanastutireva ca II 
Buehler translates the verse thus : 

" The whole Veda is the (first) source of the sacred law, next 
the tradition, and the virtuous conduct of those who know the 
Veda (further), also the customs of holy men, and (finally) self- 
satisfaction." (S.B.E., XXV, p. 30.) 

Medhatithi construed " the practice of good men " (sadhunam 
acarab) with " learned in the Veda " (tad-vidam), and correlated 
goodness and Vedic learning, confining valid usage, as a source of 
Dharma, to those who combined both, i.e. Brahmanas. The com- 
mentators following him distinguished between s'lla (conduct) of 
those learned in the tradition (stnrti) and usage (acara) of good 
men (sadhunam) and held, like SarvajSa-narayaija, that the latter 
was inferior to the former on account of the possibility of incorrect- 
ness of the tradition on which usage was based. That the distinc- 
tion was not perhaps originally intended is evident from the 


circumstance that Gautama, (I, 2) refers to vlla (conduct) only, 
while Baudhayana (I, 4) and Vasistha (I, 5) refer only to usage or 
practice (agama and acara). The original belief was that among 
those learned in the Veda and tradition (smfti) there could be no 
difference between conviction and practice. But valid usage was 
held to be those of Brahmanas only. Mitramis'ra (c. A.D. 1610) was 
the first to make a break by suggesting an alternative interpreta- 
tion. In Viramitrodaya, Paribhasa-prakaVa, p. 9. (ed Chow- 
khamba, 1896), he suggested that, as an alternative explanation of 
the verse of Manu cited above, the 'word "acarah" should be 
connected with " Sadhunam," when the meaning would be that 
" even those not learned in the Veda are to be accepted as authorities, 
if they are men free from weakness and defects, and in such cases, 
the usage of good S'udras (Sacchudrah) becomes authoritative. 
Though Mitramis'ra restricted the applicability of such usage to 
S'udras alone, even then, the break he made was definitely 
important, and a concession to the altered times. The passage 
is important enough for full citation : 

" Athava, ' acaras'caiva sadhunam' iti cchedah. Evam ca 

a-vedavidam api kslna-dosa-puru^anam acarah pramanam. 

Tatha ca sac-chudradyacarah tat-putradln-prati bhavati 




In the earlier authorities emphasis is on Sita, explained in 
the Maskari-bha$ya as " avagata-vedarthafy " (men proficient in the 
understanding of the meaning of the Veda) and " sva-dharma- 
vasthitah " (men rooted in the discharge of their own Dharma 
(Gautamasmrti, ed. Mysore, 1917, p. 453 and p. 456). Gautama 
(XXVIII, 49 and 51) rules that " in cases for which no rule is given, 
the course should be followed of which atleast ten (Brahmanas), who 
are well-instructed (in the Veda) i.e. s f i$tah skilled in reasoning 
and uncovetous, approve. . . . But on failure of them, the decision 
of one S'rotriya, who knows the Veda, and is properly instructed 

NOTES 157 

(in the duties, shall be followed) in doubtful cases." (Buehler, in 
S.B.E., II, 1897, p. 310). 

Baudhayana (I, 4-6,) after laying down that the source of 
Dharma, after the Veda and Smrti, was Si^acara, proceeds to 
describe the qualities of the s'i$ta as " freedom from envy, and 
pride, the possession of gram for not more than ten days' consump- 
tion, and freedom from covetousness, hypocrisy, greed, perplexity, 
arrogance and anger : " 

(Si$ttfhkhalu vigatatnatsarah nirahamkarahkumbhl-dhanyah 
alolupah dambha-darpa~lobha-moha~krodha-vtvarjttaji I 

Vasistha (I, 6) defined the s'ista as " one whose heart is free from 
desire " (s>i$tah punah akamatma.) Vedic learning, ascetic un- 
wordliness and samtliness are old qualifications of the s>i$ta, whose 
practice or precept was to be followed where there was no clear 
rule. While re-affirming the position of the s'ista as the declarer 
of Dharma m doubtful cases, Manu defines the qualifications of the 
S'ista (XII, 108-9) : " If it be asked how it should be with respect 
to (points) of Dharma which have not been clearly stated, the 
answer is that what Brahmanas, who are also s f itas, propound 
should clearly have force. Those Brahmanas are deemed s r ttas t 
who, in accordance with Dharma have studied the Vedas with 
their appendages, and who perceive by the senses the revealed 
texts as reason for distinguishing right and wrong." The 
appendages of the Vedas are stated by Medhatithi (ed. Jha, 
II, 1839, p. 487) to be the Itihasa and Purana. To these are added 
the Vedangas by the Smrticandnka (ed. Mysore, Samskara, 1914, 
p. 6) and the Mimamsa, Smrti etc. by Kulluka. 

Manu's injunction (II, 6 and 12) that the acara (custom) of the 
good (sadhunam) or sadacarah should be regarded (Tantravartika, 
p. 143) as one of the sources of Dharma must be read with the 
above injunction to refer doubts to s'istah, and the " good men " he 
had in view treated as those fully qualified to be designated vistah. 
The equation Sitah, Sadhufy is accepted by the commentators and 
digest makers, like Vijnanes'vara, Kulluka and others (Mitakara, 


I, 7, and Manu, II, 6) but the tendency is to both limit and broaden 
the old concept of the authority competent to decide doubtful cases* 
Thus, VisVarupa (c. A.D. 900) (commenting on Yajnavalkya, I, 7) 
would limit sadacara to religious and spiritual, as distinguished 
from temporal or wordly acts of the good men. On the other side, 
Madhavacarya (c. 1350) gives the power of interpretation as 
sadhavah "to the elders of each family and tribe." (ed. Bib. Ind. 9 
p. 100), and Mitramis'ra gives a purely ethical interpretation of 
sadhavah by quoting the following fanciful etymology from 
Visqupurana : 

" Good men free from all defects are called sat, and their 
practice, acarana, is called sadacara." Mitramis'ra further brings 
the practice of the good S'udra within sadacara, so far the Dhanna 
for the last varna is concerned. 

The supersession is manifestly due to the impossibility of 
finding men with the qualifications laid down for s>i$tah, and is an 
illustration of silent adaptation. 



As'vaghosa in his V ' ajracchedika claims that the S'udra Bud- 
dhists were as learned as Brahmanas. The S'udra was excluded 
from Vedic but not from secular studies. Among Buddhists there 
was no exclusion of S'udras from any kind of learning, and they 
were eligible even for the monastic life. The Buddhist monk was 
identified with the learned S'udra and much of the animus against 
the former was transferred to the latter. YajSavalkya (II, 235} 
lays down that he who feeds the S'udra ascetic at religious and 
yraddha ceremonies is liable to punishment. This is obviously 
aimed against hospitality to the Buddhist monk. Such bitter state- 
ments as that the S'udra who has learned even the alphabet should be 
kept at a distance reflect only the animus against the Buddhist. The 
Buddhist ascetic is described by Kaufilya (Arthas'astra, Mysore ed. 
1909, p. 199) as vr$ala-pravrajita * .0. S'udra ascetic. 

NOTES 159 

" Manu's hostility towards the Sfudra is primarily towards the 
learned Sudra, the controversialist, claiming equality and freedom." 
Oayaswal, Manu and YajHavalkya, p. 92.) 

Manu's references to "S'udras who assume the marks of the 
twice-born" (Sildrams'ca dvija-linginali ; IX, 224) and heretics 
(Pa$aqdinalfi, IX, 225) as well as those who follow prohibited 
pursuits (Vikarmasthali, IX, 225) are to Buddhists. In XII, 95 
Manu alludes to them as those outside the Vedas (Vedabahyafy). 
The Vtwvpuraqa condemns the village mendicant and Jaina 
ascetic (Grama-yajaka ntrgrantho bahudoso durasadah). The 
at-trimsanmata, ed. Chowkhamba, p. 174, rules that a bath with 
clothes on is the prescribed purification when one touches Baud- 
dhas, Pas'upatas, Jamas, Lokayatas, Kapilas, and the twice-born 
who follow forbidden pursuits. 


48, //. 17-28. LIMITS OF ARYAVARTA 

Baudhayana (I, 2, 10) lays down the limits of Aryan occupation 
and indicates the areas which one can visit only subject to penance : 
Prag-Adar&anat, pratyak-Kalakavanat, daksittena-Hima- 
vantam, udak-Pariyatram, etat Aryavartam. Tasmin ya 
acarah sa pramanam. Ganga-Yamunayor-antaram ityeke. 
Athatra Bhallavino gatham udaharanti : 

Pas'cat-sindhur-vtsarant Suryasyodayanam purah I 
Yavat Krno vidhavati tavaddhi brahmavarcasam II Iti : 
Avantayo-Anga-Magadhah Sura$tra Dakinapathah I 
Upavrt Sindhu-Sauvlra ete samklrna-yonayah-\\ 
Arattan Karaskaran Pundran Sauvlran Vangan Ka- 

Pratiunan iti ca gatva punaS'Stomena-yajeta-sarvapr$- 

thaya va. 
Athapyudaharanti : 

Padbhyam sa kurute papam yah Kalingan prapadyate 1 
R$ayo ni^kftim tasya prahur- Vai&vanaram havify. II 

(I, 2, 16.) 


It will be seen that the areas which Baudhayana excludes from 
Sryavarta are the Punjab, Magadha, Anga, Vanga, Gujarat, Sindh, 
the lands south of the Vmdhyas, as well as Raj put ana and Malwa 
north of the range. 

S'ankha-Likhita lay down : 

Prak-Sindhu-Sauvlrat, dakinena Himavatah, pascat 
Kampilyat, udak Pariyatrat, anavadyam brahma- 

They thus exclude the lands of Sindh and Sauvira (Kathiawar 
and Gujarat). 

Paithinasi lays down : 

A-HimavataJt, A-ca Kumaryah Sindhur-Vaitaraqi-nadl- 
Suryasyodayanam purah yavad-va krqa-mrgo vicarati 
tatra Dharmah catu$pado bhavati I 

The lands described as the eastern limit include Orissa. Baudha- 
yana (as quoted in Viramitrodaya, Panbhasa-prakas'a, p. 58) adds 
that he who visits Anga, Vanga, Kalinga, Magadha and Sauvira 
except on a pilgrimage must undergo new samskaras (punas- 
samskaram arhati). 

Manusmrti, II, 22-23, lays down that the Aryan country runs 
from sea to sea, east and west, and mountain to mountain, i.e. the 
Himalayas and the Vindhyas, north to south. He adds that where 
the black antelope naturally flourishes the country must be deemed 
fit for sacrifices, and the lands (where it does not) as those of 

A-samudrattu vai purvat, a-samudrattu pas'timat I 
Tayorevantarm giryoh Aryavartam vidurbudali II 
Kr$nasaras-tu carati mrgo yatra svabhavatafy I 
Sa flleyo Yajftiyo de&o mleccha-des'astu atah-parali H 
The definition of the limits given by the Bhallavins, a school 
of the Samaveda, is quoted with approval by Vasistha (I, 15) : 
Athapi Bhallavino Nidane gatham udaharanti 
Pascat -Sindhur-vidkaraql, Suryasyodayanam purafy I 
Yavat-kf$qobhidhavati tavad-vai brahman areas am II 

NOTES 161 

That is to say, the western boundary of Ary5-varta is the 
Indus, the eastern the Suryodayana, and as to the north and south, 
the habitat of the black antelope. 

That the lands which are free for the antelope to roam over, 
for barley and the kus r a grass to grow, and which are full of holy 
places are those which the wise will live in is stated in the Sdf - 
purana, as quoted by the Vlramitrodaya (op, cit. p. 57) : 

Kr$nasarair yavair darbhaify caturvarnya&'ramaistathZ I 
Sayirddho dharma-des'as-tam a&ryeran vipa&citah \\ 

It will be noted that the emphasis is also on the prevalence 
of the varnas'rama-dharma in the area. This principle is stated 
explicitly by Vi$i?usmrti : 

Catur-varqya-vyavasthanam yatra des'e na vidyate I 
Tarn mleccha-des'am janlyat Aryavartam-athah-param II 

For other quotations see the Paribhasa-prakaVa of Vlramitro- 
daya, pp. 58-60. Dr. K. P. Jayaswal (Manu and YajHavalkya, 
pp. 27-29) discusses the subject, and concludes that the extension 
or restriction of the area of Aryan usage coincided with the advance 
or retreat of Brahmanical rule in the land. 

48, I. 32. APAD-DHARMA 

In times of distress occupations not normally allowed to a 
varqa are permitted to its members. These are summarised in 
Manusmrti, IV, 81-104, with specifications of the occupations 
which even in distress a Brahmana should not follow. Distress 
is held to know no law, and a Brahmana who accepts food even 
from the most degraded is no more tainted 'than the sky by 
mud ' (ib. 104). YajSavalkya deals with the same topic in- the 
section on expiations (III, 35-44). He too holds that afflicted by 
distress and eating anywhere the Brahmarjia incurs no sin needing 
subsequent expiation. 

ParaVara is even more emphatic. " During revolutions, (des'a- 
bhahga), foreign travel or exile (pravasa) t affliction (vyasana), let 


one save himself first, and then think of performing Dharma. . 
When times of distress have to be tided over, one should not think 
of purity or proper conduct (vaucacara). He should subsequently 
perform expiation (when the pressure is past) and act according 
to Dharma " (VII, 41 and 43). Again, he holds that " the Brahmana 
who eats in the house of a S'udra in a time of distress is purified by 
his mere feeling of regret or by muttering the drupada " (XI, 21). 
This exemption applies only to periods of distress as the food of the 
S'udra is held to be capable of making a Brahmana loje his caste 
(XII, 32). 

For other texts on Apad-dharma see Apastamba, 20, 10-21 ; 
Gautama VIII, 1-26; Vasi&ha, II, 22-29; Baudhayana, II, 4, 
16-21, and VY$nw, II, 15 and LIV, 18-21, and the commentaries on 
the relevant passages of Manu and Yajnavalkya. The principle 
was capable of considerable extension, the only restriction being the 
avoidance of those occupations which were specifically named as 
inadmissible even in times of distress, i.e., when one could not 
live by following his varna occupation. 


Baudhayana (II, I, 1-2) places sea-voyage (samudra-sam- 
yanam) at the head of a number of offences which cause loss of 
caste (pataniyani) which are only less heinous than the inexpiable 
sins (mahapatakatt). But he also mentions sea-faring as one of 
the special customs which are allowed to the people of the north 
(I, i, 2, 4. Athottaratah . . . samudrayanam iti), but he rules 
that if the special practices of the north or the south are put in 
force anywhere else, it would lead to sin (I, i, 2, 5). Manu 
(III, 158) forbids sea-voyages by implication by laying down that 
those (dvijas) who do so should be avoided, (varjaniyali prayat- 
natah, III, 166). Apparently the sea-trade for which he provides 
no fixed rates for conveyance, were to be undertaken by others. 

In the Brhannaradiya-puraija (cited in Dharmapradfpa 9 
1937, p. 50) it is implied that the re-admission into their varna of 

NOTES 163 

those who had gone on sea- voyages was allowed before the Kali- 
yuga, because they are stated as disallowed (varjyah) in the 
Kaliyuga : 

Samudra-yatra-svlk&rah kamandalu-vidharanam I 
Dvijanam asavarnasu kanyasupagatam tatha II 
Devaracca sutotpattih tnadhuparke pas'orvadhah \ 
Mamsadanam yatha s'raddhe vanaprastas*ramastath& H 
Dattak$atayah kanyayati punardanam parasya ca \ 
Dl?gha-kalam brahmacaryam naramedhas'vatnedhakau H 
Mahaprasthanagamanam gotnedhas'ca tatha ntakhah I 
Iman dharman Kaliyuge varjyanahufy mani&nah. II 


Paras'ara (I, 33) lays down : 

Yuge-yuge tu ye dharmah tatra tatra ca ye dvijab I 
Tenant ninda na kartavya yugarupahi te dvijafy. II 

This indicates that rules are to be different for the different 
cycles of time (yuga). The principle is that duties will be propor- 
tioned to the capacity of men in different cycles, it being held that 
there is a deterioration of capacity and power from the first to the 
fourth yuga, and in the fourth yuga itself with the lapse of time. 
Many rites like the sacrifice of cows and the doing of many acts by 
ancient sages, which now perplex us, are due to the superior potency 
of the people of those ages. The point is brought out by the 
S'loka Apatamba : 

Team tejo-vis>eena pratyavayo na vidyate I 
Tad-anvtk$ya prayuftjanafy stdatyavarako narah II 

The point is brought out by Brhat-Paras'ara : 

Yuge yuge tu ye dharmah te$u dharmeu ye dvijah \ 
Te dvija navamantavya yugarupa hi te dvijab II 

A long catalogue of various practices, which are now condemned for 
the Kali -yuga, is given in the extracts collected on pp. 50-56 of the 


recently published Dharmapradlpa (Calcutta, 1937) from the 
Par5s'ara-M&dhaviya t ed. Islampurkar, I, i, pp. 128-142. 

The reduction of the ancient rigor of duty to women and the 
men of the different castes is illustrated by ParaVara's chapters on 
purification. A married women is prohibited from performing 
vratas (vows necessitating austerity) as by doing so she would 
diminish the longevity of her husband (IV, 17). A married women* 
who has lost her husband by flight, death, or by his sanyasa, or 
impotency or becoming an out-caste, is eligible for re-marriage 
(IV, 30). The STudra need not observe fasts (to secure purification 
for a sin), as by making a mere gift he can secure the result, 
(VI, 51, repeated in XI, 28.) 



Sri Bhagavata rules : 

Strt-S'udra-dvijabandhunam trayo na S'ruti-gocara I 
Iti Bharatamakhyanam munina krpayahrtam H 

i.e. * For women, S'udras and degraded Brahmanas access to the 
Veda is shut and the compassionate sage has provided for them the 
Mahabharata instead.' Commenting on this dictum, Mitramis'ra 
states (Paribha$a, p. 37) that the knowledge of Atman which the 
Veda will give can be equally furnished by the epics (Purai?as). 
S'udras and women are entitled to knowledge of the Atman 
but not through the Vedas. He quotes another PuraQa to the 
effect that the devout STudra acquires true knowledge through the 
reading of the Puranas and that according to some sages there is 
parity between women and S'udras : 

Asti s'lufrasya s f us>ruoh purayenaiva vedanatn I 
Vadanti kecin munayah strlqam S'udfa-samanatam II 

Like others who die at KaVi they can obtain mukti by death there. 

NOTES 165 


49, //. 12-15. UPANAYANA FOR WOMEN 

Dr. A. S. Altekar in his Position of Women in Hindu Civilisa- 
tion, 1938, shows that originally girls had upanayana performed 
for them like boys, and performed the daily Sandhya rites, as Slta 
is said to have done in the Sundarakanda of the RUmctyana 
(XIV, 48), MitramisYa in his Samskara-prakas'a (pp. 402-405) 
deals with the question of upanayana for women. Harita is cited 
to show that women are of two classes, Brahmavadinl and 
Sadhyovadhufy ; the former has the sacrificial fire, study of the 
Veda and alms within her own house ; the latter has upanayana 
done when marriage is nigh, and then the wedding is celebrated. 
\arna is quoted to show that in past ages (pura-kalpe) girls used 
to have the girdle of upananayana (maunji-bandhanam), study of 
Veda, and the recitation of the Savitrl, when their fathers, uncles or 
elder brothers used to teach them, and arrange for their daily 
begging within the house itself, but the girls were to abjure the 
wearing of the antelope skin like the boys, and matted locks. 
The reduction of the duties of women, or as status, as modern 
observers may view it, is seen in Manu : 

" The samskaras, which are done for boys with Vedic mantras 
should be performed for girls without Vedic recitation ; the comple- 
tion of the samskaras for girls is for the protection of their bodies. 
It should be done in proper time and form ! " Manu rules that 
for girls marriage should be regarded as the substitute for upana- 
yana, as a Vedic ceremony, the service of the husband as equal 
to living in the house of the Guru, and attention to domestic 
duties as tantamount to attention to the sacred fire. Her associa- 
tion in all karma gives the wife an equal part in them with the 
husband, even though her function is passive. 

As late as about 150 B.C. the freedom given to women to* 
perform Vedic rites is illustrated by the Nanaghat inscription 
of Queen Nayanika, widow of S'atakarni I, who states that 
she lived the life of brahmacarya (after the death of her 


Husband, as the faithful Hindu widow is enjoined to live) and 
that she performed the Rajasuya and As'vatnedha sacrifices. 
But, whether her claim relates to her association in these sacrifices 
.as Pa#a-Mahi$l (senior queen) with her husband, when he 
performed them, or by herself, as Dr. Altekar holds (op. cit. 
p. 243) it is hard to say, but the probability is in favor of the 
former view, as her description of her own life fits in with the 
Brahmanic ideals of the virtuous widow. 



The rules of purification (s'uddhi) were made less stringent 
in the later smrtis like Parasfora's, and the rules about the acquisi- 
tion of taint (doa) necessitating purification were made easier, by 
application of the principle that with waning power and the passage 
of cycles of time, men required more lenient construction of offences 
and expiation. This is illustrated by the rules regarding un touch - 
ability (asprs'ya) following either one's varna or some special act. 
Thus, according to a s'loka cited in Dharmapradlpa (p. 150), con- 
tamination which arises even from conversation with a low-born 
person or an out-caste (patita) in Krta-yuga, from touch in Treta- 
yuga, and from eating his food m the Dvapara-yuga, arises in 
the Kali-yuga only by actually doing the forbidden act. Paras'ara 
ruled that the sin of as (associ?tion with these guilty of the five 
inexpiable sins (maha-pataka) can be removed bva.vratcr. Another 
dictum states that the sin of touching a Candala is removed by 
looking after the taint at the Sun, (tb. p. 152) ; (Caqtfalaspars'atte 
sadya adityam avalokayet.) Similarly, in the Krta-yuga, one had 
to leave the country in which there were out-castes and sinners ; in 
Treta-yuga, it was deemed enough if one left the village in which 
they were found, and in Dvapara-yuga the particular family con- 
cerned ; but in the Kali-yuga, it is enough to leave the actual 
perpetrator of an offence. At the same time, certain general ex- 
emptions from impurity by touch were given. Thus, artisans. 

NOTES 167 

cultivators, physicians, servants, (dasl-dasa), kings, and learned 
Brahmanas are always pure (p. 158.) In festivals, pilgrimages, 
marriages and sacrifices, there should be no consideration of purity 
or impurity following touch (p. 151.) The literature of S'uddhi r 
which is treated elaborately in the later smrtis and nibandhas 
(digests), illustrates the principles suggested in the text. 

Yajnavalkya (III, 28-29) lays down automatic purification 
(sadyas'-s'aucam) in the following cases : 

Rttiijam diksitanam ca yajHlyam karma kurvatam I 
Satri-vratl-brahmacan-datr-brahmavidam tatha II 
Dane vivahe yajne ca samgrame des'aviplave I 
Apadyapihika$tayam sadyas'-s'aucam vidhtyate H 

Other dicta against the occurrence of impurity in certain cases are 
indicated in the following rules of Paithinasi and Arigiras : 

7. At ha deva-pratistayam gana-yatradi-karmani I 

Sraddhadau pitr-yaffle ca kanya-dane ca no bhavet II 

2. Rajya-nas'astu yena syat vina rajna sva-matodale I 
Prayasyatasca samgrame home prasthanike sati II 
Mantradi-tarpanair-vapi prajanam S'ctnti-karmani \ 
Go-mangaladau vais'yanam krt-kalatyayefvapi II 
A&aucam na bhavel-loke sarvatr-anyatra vidyate I 


The rule of Cyavana (cited in Dharmapradlpa, p. 158) illu- 
strates the equitable rule lowering the amount of expiation in 
the case children, old persons and women : 

Bala-vrddha-strliiam ardham prayascittam ; A $odas f at 
balah ; saptatyutdhvam vrddajt ; 

Similar exemptions exist in many other sections of Dharmas'astra 
for these three classes as well as persons who are ill. 





The struggles of the saints of the Bhakti-marga with the strict 
adherants of Dharmas'astra are recounted in Hindu and STaiva 
bagiology. To begin with, the saints were not of the first varna 
and accordingly had no right to teach religion, according to 
strict rule. Again, within the fold of devotees (bhaktah) the 
traditional rule of superior and inferior, and the inferiorit/of women 
for spiritual exercises, was discarded. The saints often attacked 
caste distinctions, e.g. Kablr (R. G. Bhandarkar, Vai$navism 
Saivism, 1913, pp. 70, 83), Caitanya's repudiation of caste in 
admission of disciples, and by the Ucchista-Ganapati sect (p. 148). 
Some of them scoffed at the rites prescribed by Dharmas'astra. 
Thus Namdev derided fasts and pilgrimages (ib. p. 90) and Tukaram 
followed suit by condemning mere physical purification and 
mechanical rites (ib. p. 92) Illustrations can be easily multiplied. 




For the Roman Law of the growth of individual right in 
one's own earnings through the application of the principle of 
peculium castrense, under which Augustus had conceded to a 
filius-familius on service the right to dispose by testament of what 
he had acquired in the exercise of his profession, so as to give a 
soldier ultimately the right to dispose of ail his property, including 
gifts, legacies etc. see J. Muirhead, Historical Introduction to 
Roman Law, 1899, pp. 322-323, as well Sir H. Maine's Ancient 
Law, ed. Pollock, p. 149. 

The Hindu Gains of ^Learning Act (Act XXX of 1930) provides 
that notwithstanding any custom, or rule of interpretation of Hindu 
Law, no gains of learning shall be held not to be the exclusive 
property of the acquirer. It has set at rest the old controversies 

NOTES 169 

about the application of the rules 'of Manu (IX, 206) and Y&jfia- 
valkya (II, 118-119) and the comments thereon, supported by 
citations from Narada, (p. 190 ed. Jolly) verse 10, Vasistha (17, 51) 
Katyayana (ed. Kane, vv. 866 to 880) Vyasa etc. The course of 
evolution in freeing individual earnings seems to have followed, 
as in Rome, the freeing of Saury a-dhanam (the earnings of valor) 
and vidya-dhanam (the gams of science or learning), so long as they 
were not acquired by the use of family property, from the common 
estate liable to partition between co-parceners, and then extended 
by analogy to the fees of the sacrificial priest, gifts (dana) t commer- 
cial or trade earnings etc. The discussion may be followed in 
Vyavaharamayukha (ed. Kane, pp. 124-128). 



The recommendation of Gandharva unions for k$atnyas was 
a recognition of realities, as kings often added women to their 
antab-pura, after seduction. Inclusion of the form under marriage 
was in the interests of the girl. Later on, the disfavor into which 
it fell, owing to misuse, led to the rule that even a Gandharva 
union should be subsequently sanctified by a formal celebration, 
with religious rites. See Altekar's Position of Women in Hindu 
Civilisation, pp. 34-58. Poets like Kalidasa invested the Gan- 
dharva union with a halo of romance, but it is probable that it was 
not accepted except as an unpleasant necessity, since the subsequent 
form of marriage ceremony would be of one who was not a virgin 
(kanya). Commentators were hard put to explain away the rule that 
the bride should be a virgin, and had to interprete kanya, as 
merely a term for the bride . The old approval by Baudhayana 
of the Gandharva form, on the ground of ' its naturally being the 
sequel to love ' (Snehanugatatvat, I, II, 13, 7) gives place to 
restriction of it to the military caste and to the imposition by 
Devala, for example, of a subsequent marriage ceremony : 
Gandharve$u vivahe$u punar vaivahiko vidhih I 
Kartavyas'ca tribhir varnaih satnayenagni$ak$ikah It 


Devala provides for the marriage for the first three varnas, 
implying that for the last varna the confirmatory religious cere- 
mony was unnecessary (vide, commentary on Manu, VIII, 226). 

50, //. 16-17. ADOPTION 

From brief rules in the older smrtis of a vague nature 
(Varijtha, 15, 1-10, Baudhayana-paris'i&ha, S.B.E., XIV, pp. 334- 
336) a mass of discussion has grown on the topic. The valid 
ststraic justification for adoption is the necessity for.; a man to 
have a male child to perform his obsequies, and save him from 
falling into the hell, Put. A man without a son is therefore in 
distress (apadi). On the other hand parents in poverty may 
want to give away their sons to childless men who would bring 
them up, and perhaps give the sons property, which they can 
not obtain from the natural parents. This also is distress (apad). 
The power to dispose of a son is a remnant of the oldpatria 
potestas, for which there is sanction in the story of S'linaste'epa, 
told in the Aitareya Brahmana, whom his father sold to King 
Haris'candra under pinch of poverty. The power to give away a 
son is limited, as the act is justified, by religious necessity of a son. 
Hence the rule that an only son cannot be given away in adop- 
tion. A device for defeating this rule may perhaps be seen in 
the recognition of a son belonging to " two fathers " (Dvyamu$ya- 
yana). The filiation of an adopted son with the rights of rever- 
sioners has to be reconciled ; and this leads to the rules of consent 
of such reversioners. As adoption is a creation by a magical act 
(dattahoma) of a new son, the principles of consanguinity and 
conformity to probability of parentage, if the son can have been 
a real son, arise. The disputed rule of the Kalika-purana as to 
the invalidity of adopting a boy, whose cuda- karma (tonsure) and 
initiation (upanayana) are already over, is perhaps an attempt to 
tide over the difficulty of adoptions by young men in articulo 
mortis. The whole structure has been built up by legalists. 

See Ganganath Jha, Hindu Law in its Sources, II, 1933,. 
pp. 217-219 ; and, Jolly, Law and Custom, ed. 1928, pp. 156-166. 

NOTES 171 



See my Ancient Indian Economic Thought, 1934, 53-54, and 
Altekar's Position of Women in Hindu Civilisation, passim. 

In Hindu law a woman is always unfree or dependant, and 
is the terminus of the family. Gautama enunciated the rule 
(XVIII, 1) Asvatantra dharme strl. 

See Manu, V, 147-149, and IX, 2-3 ; Yajfivalkya, I, 183, 186 ; 
Visnu, 25, 4-6. 

See also Gurudoss Banerjee, Hindu Law of Marriage and 
Stridhana; Jolly, History of Hindu Law, pp. 76-81, and pp. 226, 
259 (history of female property) ; and Jayaswal, Manu and Yajna- 
valkya, pp. 225-235, and pp. 256-261. 



See Kautilya, II, 23, p. 114: 

Yas'ca aniskasinyah prosita-vidhava nyanga kanyaka va 
atmanam bibhryuh ; tah sva-daslbhih anusaryasopagr- 
aham karma karayitavyah ; svayam agaccantlnam va 
sutras'&lam pratyuasi bhaqda-vetanavinimayam karayet. 
Sutra~parlkartha-matram pradlpah. 

Striya mukhasandars'ane anya-karya>sambha$ayam va 



Apastamba (II, 16-19) : 

" No division takes place between husband and wife (16). For, 
from the time of marriage, they are united in religious ceremonies, 
(18) ; likewise also as regards the rewards for works (karma) by 
which spiritual merit is acquired, and with respect to the acquisi- 
tion of property." (Buehler, S.B.E., II, pp. 136-137). 




See Brhaspatismrtt (ed. Rangaswami, Vyavahara, XXVI, 
92-94) : 

Amnaye smrti-tantre ca purvacaryais'ca suribhih I 
Sanrardham smrta bharya puqyapuqyaphale sama II 
Yasya noparata bharya dehardham tasya jivati I 
Jlvatyardha&arire tu katham anyafy svamapnuydt II 

The theory of the identity of husband and wife, each being 
incomplete without the other, is found in a passage of the Vajasa- 
neyi-Brahmana cited by Kulluka in commenting on Manusmrti* 
IX, 45. This passage is : 

Ardho ha ea atmanah ; tasmaj-jayam na vtndate, naitavat 
prajayate, asarvo hi tavad-bhavati. Atha, yadaivajayam 
vindate, atha prajayate, tarhi sarvo bhavati. Tatha ca,. 
etad-vedavido vipra vadanti ' Yo bhartti saiva bharya 
smrta ' 

"A man is only half his self. When he takes a wife, he is 
incomplete, and so not fully born. When he takes a wife only is 
he fully born and becomes complete. So, Brahmanas versed in the 
Vedas declare : ' Verily he who is known as the husband is also 
the wife '. 

The verse of Manu, for supporting which the above passage 
was cited by Kulluka, is worth quoting : 

Etavaneva puru$o yajjaya atma prajeti ha I 

Viprafa prahuft tatha caitat ' yo bharta sa sntrtatigana ' II 

The connection between the Vedic passage and the dictum of 
Manu is self-evident. 

The equality of sons and daughters, which follows from ana- 
logy, is stated by Manu (IX, 130) thus : 

Yathaivatma tatha putrah, putrena duhita sama I 
Tasyam atmani ti&antyam, katham anyo dhanam haret K 

NOTES 17$ 

" The son and one's self are identical. The daughter is equal 
to the son. So when she, as one's self remains, how can any one 
else take the estate ? " 

It is a great progress to this stage from Apastamba (II, 14, 4) 
who placed the daughter in the line of inheritance after not only 
the sons but the teacher and his pupils. (The sutra runs " Or,, 
the daughter." Haradatta says that according to some writers 
the succession of daughters is on failure of sons, and that others 
hold that t the daughter comes after the pupils of the guru, who, 
according to an earlier sUtra, inherits on failure of sons and 
sapindas. Buehler holds the second to be the correct interpreta- 
tion of Apastamba's view.) (S.B.E. II, p. 132, n.). 




The brother should spend from his share of the paternal estate 
atleast one-fourth on the marriage of his sister. This is the rule in 
both Manu (IX, 118) and Yajfiavalkya, (II, 124) : 

(a) M. Svebhyo am&ebhyastu kanyafohyali pradadur-bhra- 

tardh prthak \ 
Svat-svadamsaccaturbhagampatitah syur-aditsavah & 

(b) Y. Asamkrtastu samskarya bhratrbhih purvasamskrtak I 

Bhaginyas'ca nijadams'at dattvams'am tu turiyakam & 
The rule of proportion laid down here was capable of different 
interpretations, and, as described by Dr. Altekar (loc. cit., p. 290- 
291), might lead to anomalies. The intention of the jurists is 
stated by Devala as making provision for the daughter's marriage 
(Smrttcandrika, p. 625). Vlramitrodaya (Vyavahara, p. 582) 
holds that a brother should spend an amount equal to his share 
if the fourth reserved for his sister's marriage proves insufficient. 
Narada (XIII, 34) rules that a brother should meet the expenses, 
from his own earnings if there is no ancestral property : 

Avidyamane pitrarthe svams'amudhrtya va punah I 
AvcfsyakaryaJt samskarah bhratrfyify purvasamkrtaify \\ 


That the marriage expenses of the daughter were a charge on 
the family was established in Kautilya's time, (p. 161) : 

Sannivi$a-samam asannivi^ebhyo naives'anikam dadyuh : 
kanyabhyayca pradanikam 

i.e. " Brothers who are unmarried should be given as much as the 
cost of marriage of the married brothers ; and unmarried daughters 
shall be given what is payable at their marriage." 

Kautilya logically includes dowry in marriage expenses. 



Brahman ism laid stress on the value of married life for the 
due performance of religious rites, and the status of the householder 
(grhi) was ennobled. This is indicated in Manusmrti, II, 77 : 

Yatha vayum samasrritya vartante sarva-jantavah I 
Tatha grhastham as'ritya vartante sarva avramal} II 

Hence, the Taittnya Brahmana (II, 2, 2, 6) declared that the 
wifeless person (widower or bachelor) was without yaflla (a-yajni- 
ko va e$a yo apatnikah). The Mahabharata (Adi. 114, 36) told 
a story to the effect that the husband-less woman was sinful- The 
obligatory nature of marriage to women is illustrated by a verse of 
Yamasmrti to the effect that a father should give a grown up 
maiden in marriage to a good man, if available, and if not even to 
a bad man : 

Dadyat gunavate k any am nagnikam brahntacarine I 
Apt va guijahinaya noparundhyat rajasvalam H 
The praise of the wedded estate is thus made by Vasistha : 

Grhastha eva pravrajet, grhastha stuyate yatali 1 
Cat urn am as'ramanam tu grhasthastu vis'isyate II 
Sarve$am apt vat te$am veda-smrti-vidhanatah \ 
Grhastha ucyate S're$tah sa trln etan bibharti hi H 

The upanayana of women was prohibited by Yajfiavalkya (I, 13) ; 
and their rites upto marriage were to be done without Vedic 

NOTES 175 

mantras. Marriage was the samskara for women, and it was to 
take the place of upanayana, according to Manu (II, 67) : 

Vaivahiko vidhili strtnam samskaro vaidikah smrtah I 
Patiseva guror-vaso gfhartho agniparikriya II 





Dr. K. P. Jayaswal, Manu and YajHavalkya, pp. 234-235, 
argues that the mind of the Brahmin lawyer was touched by the 
inferiority of women as compared with men in inheritance etc., 
because the Buddhists recognised the right of women equally with 
men to entry into the monastic order. The assumption is incorrect. 
Hinduism does not make women spiritually inferior to man, even 
though it does not encourage spmsterhood or asceticism for women. 
Jainism made a distinction between the spiritual capacity of 
man and woman (E. W. Hopkins, Religions of India). That 
the ascetic life should not be undertaken by girls without due 
spiritual urge was the Hindu view. The Mahabharata mentions 
a woman, named Sulabha, who practised austerity and remained 
unmarried so as to achieve salvation (XII, 325, 103) : 

Saham tasmin kule jata bhartaryasati madvidhe I 
Vinlta moksadharmes.u caramyeka munivratam II 



Divorce (mok$a) has to be distinguished from separation 
(tyaga). Manu lays down the indissolubility of marriage in the 
following sloka (IX, 101) : 

Anyonyasya avyabhlcaro bhaved-amaranantikah \ 
E$a dharmal} samasena fileyah strl-pumsayol} parafy I 

" * Let mutual fidelity continue till death, 1 this may be con- 
sidered the highest law for husband and wife." 


The survival of the marriage tie even after death is one of the 
inducements held out to women persuaded to commit sati : 

Tisrah-koti-ardhakotl ca yani romani manuse I 
Tavat-kalam vased-svargam bhartaram yanugaccati H 
Vyala-grahl yatha vyalam bilad-uddharate balat \ 
Evam uddhrtya bhartaram tenaiva saha modate II 

(Paras'arasmrti, IV, 31-32). 

The rules of Yama, S'atatapa, and Katyayana allowing a girl 
married to an improper person to remarry again, are explained away 
by Madhavftcarya (Paras'arasmrti, vol. I, pt. 2, pp. 90-91) as 
relating to other yugas and as inapplicable to the present times : 

So ayam punar-udvaho yugantara>viayah. Tatha ca 

Aditya pur aye : 

Ddhayahpunarudvaham jye$tams r am go-vadham tatha I 
Kalau paftca ha kurvita bhratr-jayam kamandalum II 

Kaujilya accepted the rule that in Dharma-vivaha (the first 
four forms of marriage) there could be no divorce : 

Amokso dharma-vivahaHam. (p. 155) 

But if the husband and wife hate each other and agree to release 
one another they can do so. 

The rules allowing remarriage of widows and women whose 
husbands have long not been heard of etc., which were probably 
operative once, have been explained as interdicted for this age. 
Among them is the famous rule of Narada (XII, 67) : 

Nate mrte pravrajite klibe ca pattte patau I 
Pdftcasu apatsu nariqam patir-anyo vidhiyate II 



Dirgha-brahmacaryam is one of the Kalivarjyas, according 
to Brhan-naradtya-purBqa (cited in Dharma-pradtpa, p. 50) : 

NOTES 177 

Dattak$atayah kanyayah punar-danam parasya ca I 
Dlrgha-kalam brahmacaryam naramedhas'vamedhakau II 

The relevant clause prohibiting prolonged study and celibacy 
(which are involved in Brahmacarya) is cited from the Brahma- 
puraqa in Madhavacarya's bhaya on Parasrara-smrti (vol. I, pt. 1, 
p. 133, Islampurkar's ed.) 

The authors of the Dharma-pradlpa explain that the inter- 
diction of prolonged brahmacarya of 24 years and more pres- 
cribed in ^he Grhyasutras is impracticable at present (p. 53). 

Manusmrti (III, 1-2) lays down that one should have studied 
the three Vedas, or two, or atleast one before entering the order 
of householder (Grhastas'rama) and that the vow of studying 
the Vedas, must be kept for 36, 18, or 9 years, or until the 
student has learnt the Veda perfectly. Manu's dictum in regard 
to the duration of brahmacarya is identical with the dicta of all 
smartas, with the exception of Baudhayana, (I, 2, 3, 1-5) who 
prescribes penods of forty-eight years, or twenty-four years, or 
twelve years for each Veda studied, or atleast one year for each 
Kanda of the Veda studied, or till the Veda has been mastered. 
He cites the Vedic injunction that one should kindle the sacred fire 
when one's hair has not turned grey (Jata-putrali krwa-kes'o 
agnim adadhlta) ' lest the duty of offering the Srauta Agnihotra 
be neglected ', for, as he himself remarks, ' life is uncertain '. This 
extra-ordmarily long period of brahmacarya is taken up by S'abara- 
svamin's (I, iii, 2) discussion, as the s'ruti (cited) and the smrti 
(Baudhayana) are in conflict. S'abara holds that the smrtt rule is 
invalid, and he is in line with the later smrtis which include dlrgha- 
brahmacarya among the interdictions of the present age (Kaliyuga). 
Kumarila attempts a reconciliation by suggesting that the dirgha- 
brahmacarya rule is for those who are physically unsound and 
not quite fit for married life, but who are unable to remain celibate 
through lack of self-control. A text from the Atharva-veda is 
cited in support of the rule to which Baudhayana has given his 
adherence, to show that S'abarasvamin's summary rejection of it is 




For the panegyric on the house-holder's life see : 
Manusmrti, III, 77-80 : (Buehler's trn.) 

" As all living creatures subsist by receiving support from air 
even so (the members) of all orders susbsist by receiving support 
from the householder. Because men of the three (orders) are 
daily supported by the householder with (gifts of) sacred knowledge 
and food, therefore (the order) of householders is the most excellent 
order. (The duties of) this order, which cannot be practised by men 
with weak organs, must be carefully observed by him who desires 
imperishable (bliss in) heaven, and constant happiness in this life, 
the sages, the manes, the gods, the Bhutas, and guests ask the 
householders (for offerings and gifts) ; hence he who knows (the 
law) must give to them (what is due to each) ". 

For parallel passages, see Vasi&ha, VIII, 14-16, and Vinu, 
LIX, 27-29. 



The relevant texts of Katyayana have formed the basis of dis- 
cussion by the digests. These are arranged as under by Mr. Kane 
in his reconstruction of Katyayana : 

Asuradi$u yallabdham stndhanam paitrkam striya \ 
Abhave tadapatyanam mata-pitros-tadi$yate II (920) 

That Stridhana which was obtained by a woman from her 
parents in the forms of marriage beginning with the asura is desired 
(held) to go to her parents on failure of her progeny. 

AputrB s'ayanam bhartuh palayantl gurau sthita I 
BhuHjlta amaraqat k$anta ; dayada urdhvam apnuyuh II 


A sonless widow, preserving the, bed of her husband unsullied, and 
residing with her elders, and being self -controlled (or forbearing) 

NOTES 179 

should enjoy her husband's property till her death. After her 
death, the other heirs of the husband will succeed to it. 

Svaryate svamim strl tu grasacchadana-bhaginl \ 
Avibhakte dhanams'am tu prapnoti amaranantikam II (922) 
Bhoktumarhati kip tarns' am guru-s f us'ru$ane rata I 
Na kuryad yadi s f us r ruam caila-pinde niyojayet II (923) 

When her husband is gone to heaven, the wife is entitled only 
to food and raiment, if her husband was not separated, or she may 
get a share in the ancestral wealth till her death. The widow 
intent on serving her elders, is entitled to enjoy the share allotted to 
her ; if she does not serve her elders, only food and clothes should 
be given her : 

JJf rte bhartari bhartrams'am labheta kulapalika I 
Yavad-jivam ; na hi svamyam danadhamana-vikraye II 


Vratopavasanirata brahmacarye vyavasthtia I 
Damadanarata nityam aputrapi divam vrajet II (925) 

' A wife who seeks the honor of the family gets the share of her 
husband till her death ; but she has no power of gift, mortgage or 
sale. A widow engrossed in religious observances, fixed in celibacy, 
always self-restrained, and making gifts goes to heaven, even though 
she is sonless.' 

These rules give the widow only a life-interest in her husband's 
estate, and they form the foundation of the modern right of the 
Hindu widow to her husband's estate, and after her the reversioners. 
The rules are old, as Kautilya (p. 153) lays down identical in- 
junction : 

Aputra patis'ayanam palayanti guru-samlpe S'trldhanam 
ayulik$ayat bhuftjita ; apadartham hi strldhanam ; urdhvam 
dayadam gaccet. (Ill, 2) 

The rules were interpreted so as to allow the widow to incur 
expenditure of various kinds, e.g., gifts on the ground of the spirit- 
ual benefit accruing therefrom to her and to her husband, religious 


expenditure etc, The extension is made in Vyavahara-mayfokha 
(Kane's trn, p. 152) in explaining rule 920 of Katyayana : 

" The text refers to a prohibition of gifts and the like intended 
for bards (vandi), panegyrists (carana) and the like. But gifts 
for unseen (i.e. spiritual) purposes and mortgages and the like 
conducive to those purposes are valid, on account of the rule 
(viz. 925) of Katyayana". 

Some of the verses of Katyayana cited above are ascribed to 
Yama by the Smrticandrika (Vyavahara, pp. 665 seq.) 

Devanna Bhafja, the author of the Smrttcandrika also ex- 
tends the power of the widow to make gifts etc., in spite of the 
apparent limitation of her power: (trn. Krishnaswami Aiyar, 1867, 
pp. 169, 170). 

" The competency of the widow to make gifts for religious 
and charitable purposes, such as the maintenance of old and help- 
less persons, being sanctioned by law, the above passage must be 
held as contemplating the want of independence of a widow in 
making gifts etc. for purposes not being religious or charitable, 
but purely temporal, such as gifts to dances and the like. A 
widow thus possesses independent power to make gifts for religious 
objects, and therefore the same author enjoins the constant pre- 
sentation of gifts by a widow for religious purposes. . . . The 
daily making of such gifts will be impracticable if the widow were 
held to possess no independent power. It is hence to be understood 
that the law does not deny the independent power of a widow even 
to make a mortgage or sale, for the purpose of providing herself 
with the necessary funds for the discharge of religious duties." 



Cf. Dr. Altekar (op. cit. p. 102) : 

" Divorce went out of vogue only in the higher sections of 
Hindu society. The Sudra-kamalakara, written in the 17th 
century, expressly permits it to S*udras and other lower castes." 
KamalSkara relies on a rule of Narada (not found in Jolly's edn.) : 

NOTES 181 

Na Siidrayah stprtah kola, na ca dharma-vyatikramah \ 
Vis'e$ato aprasutayah striyah samvatsarad-vidhik II 

The verse ends samvatsarapara sthitih in Naradiya-Manu- 
samhita, (ed. Trivandram, 1929) p. 145. 

Kautilya limited divorce to the forms of marriage other than 
the first four, which were in use by non-Brahmanas only (III, 4 
or p. 155). 

52, //. 6-1Q. KALIVARJYA 

See Note 128, ante (pp. 163-164) on the relaxations of Yuga- 

The rules interdicting certain ancient practices on the ground 
of their unfitness for the weakened men of the present age are 
generally cited as Kalivarjya and are to be found in the Puranas 
and some of the later smrtis. In the Vanaparva (clix, 11-34) of 
the Mahabharata an account of the gradual decline of power and 
dharma from yuga to yuga is described. Some of the practices 
of the ancients may prove repugnant to present day conscience. 
But they should not be condemned on that account. Thus 
Paras' arasmrti (I, 33) : 

Yuge yuge ca ye dharmas tatra tatra ca ye dvijali I 
Te$am ninda na kartaya yuga-rupa hi te dyijali II 
Thus, we should not condemn the injunction of Manu (VIII, 
371) that the wife, who proud of her virtues or birth contravenes 
the directions of her husband should be thrown by the king to the 
dogs to be devoured by them. It refers to a different age. 

Madhavacarya collected a number of texts on Kalivarjya and 
these have been printed in his edition of Par as 1 arasmrti (I, i, pp. 
131-137) with valuable comments of his own by the late Mahamaho- 
padhyaya Vaman S'astn Islampurkar. Hemadri, Madanaparijata 
and other authorities give quotations on Kalivarjya. In the 
recently published Dharmapradlpa (pp. 50-53, and pp. 232-244) a 
list of the inhibitions of the Kali -yuga is given and the 
premissibility of such practices as the remarriage of widows, for 
which smrti sanction may be cited, in the present age, is discussed. 


The most accessible collection of practices inhibited for the 
Kaliyuga is that of Mr. P. V. Kane, in a paper on Kalivarjya, 
which he contributed to the Eighth Oriental Conference. He has 
catalogued 49 practices as so forbidden, and stated in each case the 
older authority, enjoining or allowing the practice condemned later 
as Kalivarjya. He holds that the doctrine of decadence as time 
passes is referred to in Rgveda, X, 10, 10, where in the famous dialogue 
between Yama and Yam! the former is reported as saying : " those 
later ages are yet to come when sisters will do what is /not sister- 
like." The Ntrukta implies the decadence in the contrast it makes 
between the intuitive knowledge of Dharma which ancient sages had 
and the later had not : (I, 20) 

Sak$at krtadharmana rayah babhuvuh te avarabhyo asa~ 
ksatkrta-dharmasya upade&ena mantran sampraduh I 

The doctrine of decadence is expressed in Apastamba (II, 
6, 13, 7-9) and Gautama (I, 3-4). The idea is that the sages of old 
who committed many transgressions, which are against the &astras r 
incurred no sin thereby, because of their spiritual powers, and that 
if one of the present age, who does not possess such spiritual great- 
ness, commits the same offences he will surely be sinful. 

Mr. Kane conjectures that in the five or six centuries preceding 
the Christian era the theory of the four yugas, their characteristics 
and of the progressive moral decline from yuga to the yugas follow- 
ing, was fully developed. He also holds that the theory of inhibitions 
of the Kali-yuga began to be current about the fourth century A.D- 
The yuga theory appears in its full-fledged form in the Mahabharata 
(Vanaparva, ch, 149 and 183), Manu (I, 81-86) and some Puraitas, 
e.g. Mataya, ch. 142-143, Brahma, ch. 122-123 and Naradiya, pt. 
I, ch 41. The earliest incription mentioning the sins of kali -yuga is 
one of the Pallava king Simhavarman (Epig. Ind., VIII, p, 162 : 
Kaliy ugadoavasan na-dharw a-uddharaqa-nitya-sannaddhasya) . 

Apastamba's rejection of the old rule of giving all property ta 
the eldest son as opposed to vastras 

viprati$iddham, II, 6, 14, 10) 

NOTES 183 

may be based on the kalivarjya idea, through he does not 
expressly mention it. Uddhara-vibhaga or giving a larger share to 
the eldest son on partition was known to early smrtis (Gautama, 
xxviii, 5-7, Baudhayana, II, 3, 9) and is sancioned by Manu (I, 112 
and 1170, but it is one of the Kalivarjyas. It is noteworthy, as 
indicative of the want of unanimity as regards what is or what is 
not properly prohibited for the Kali~yuga t that ' Medhatithi, after ' 
mentioning the uddhara-vibhaga as kalivarjya according to some, 
rejects th$ prohibition. 

When an authority allows a practice and another condemns it 
two ways of reconciling them, without rejecting the claim of either 
to count as authority, are open : one is to see in the opposition an 
option to follow the one or the other, and the other is to reject the 
older in favour of the newer rule, on the ground that the practice 
allowed by the former is Kali-varjya. 




The story is given in an extract from a lost drama of Visakha- 
datta, named Devi- Candragupta, which has been discovered in 
fragments in works on dramaturgy like Natya-darpana, and is 
confirmed by an explanatory passage in S'ankararya's commentary 
on Bana's Har$acarita t which contains an allusion to the slaying 
of the libidinous S'aka king by Candragupta disguised as a woman. 
The story is that the S'aka ruler desired Ramagupta, the elder 
brother and predecessor of Candragupta, to send to his harem the 
queen Dhruvadevi, that Ramagupta pussilanimously agreed and 
sent the queen, whom Candragupta rescued after \ 
According to the Mdnjus'rtmulatanti<a t Ran 
Candragupta, who married his sister-in-law^ 
Dhruvadevi. (See Jayaswal, Imperial Hij 
p. 35, R. D. Banerji, History of India, 193ft ptfieS-S^gSriTB^. V. 
Raghavan's critical summary of the < 
Benares Hindu University , 1937). 




Niyoga, the custom of a brother raising off-spring for a 
brother on his wife, is accepted by Baudhayana (II, 2, 17, 62,) 
Gautama, XVIII, 4-14, Vasistha, XVII, 14, 55-56, Vi^nusmrti 
XV, 3, Manu, IX, 56-63, 143-147, Yajnavalkya, II, 127-128, 
Narada, XII, 80-88, and Hanta, IV, 17. In the Mahabharata, 
we find cases of Niyoga applied to a wife, when the husband 
is alive. Later in the Stnrtis it is restricted to the widow. Its 
use in the Epic for widows was common (XIII, 12, 23) : 
Nari tu patyabhavevai devaram kurute patint I 

There was no restriction in the Epic on the number of off-spring 
that might be raised by niyoga on a woman. Later, it was limited 
to one son only. The Epic says that Kunti protested against being 
asked to submit to Niyoga more than once (Adt, 132, 63-64) on the 
ground of contravening Dharma. Earlier, three sons were allowed 
to be raised (ibid. I, 126). It was tantamount, as Dr. Altekar has 
pointed out (op. cit. p. 172), to a virtual marriage as the birth of 
girls did not count for discontinuance. , 

Apastamba is the earliest smart a to condemn it. He held that 
the spiritual benefit would go to the begetter and not the putative 
father (II, 6, 13, 8). Manu condemned the practice as animal, 
(pas'udhanna, IX, 66 ff.). The restrictions proceed by limiting 
the duration of niyoga to the birth of two sons (Manu, IX, 61), and 
afterwards generally to one son. The use of the device, if there 
were children already, was interdicted (Baudhayana, II, 20). The 
disposition to use it for satisfying the carnal appetite is condemned 
by Narada (XII, 80-88). The application of it for reasons of 
cupidity is condemned by Vasisfha (XVI, 57) : 
Lobhan-nasti niyogah I 

The popularity of adoption as an alternative, and stricter ideas 
of morality, outraged by the practice, led to its being included among 
the Kalivarjyah in the enumeration of which it usually leads, 
(Dharmapradlpa, pp. 50-53). 

NOTES 185 



In Madhavacarya's bhasya on Paras 1 arasmrti there is reference 
to the homage due from a pupil to the asavartia or inferior caste 
-wives of the guru (vol. I, pt. i, 328). But such unions are rejected 
in the present age as kalivarjya. Thus the Brhannaradlya 
(cited in Dharma-pradipa, p. 50) says : 

Scmnudra-yatrsvikarah kamandalu-vidharanam I 
Dmjanam asavarnesu kanyasupagatam tatha II 



Belief in the efficacy of magic and witch-craft, which is natural 
in a primitive age, is reflected in the Kautiliya (IV, 3, 4 and 
XIII, 32 etc.) In fact there was wide-spread belief that it was 
owing to Kautilya's own powers as a magician that the Nandas 
were overthrown and Candragupta enthroned in their stead. 
Kamandaka, who belongs to the Gupta epoch, alludes to this belief, 
in which he shared : 

Jataveda ivarciman vedan vedavidamvarah I 
Yo'dhitavan sucaturah caturopyekavedavat II 
Yasyabtcaravajrena vajrajvalanatejasah I 
Papatarriulatah S'riman Suparva N andaparvatah II 
Ekakt mantras'aktya yah S'aktya S aktidharopamah I 
Ajahara nrcandraya Candraguptaya medinlm II 

<f Who, by his genius mastered the four Vedas as if they were 
only one ; who, by the blazing thunder-bolt of his magic, completely 
overthrew the mountain -like Nanda ; who, single-handed by force 
of his intelligence (or magical spells) and with a prowess like that of 
the wielder of S'akti (i.e., Kartikeya, the general of the gods) 
won the earth for Candragupta, delightful like the moon to men." 

It will be noted that the reference stresses Kautilya's mastery 
of the Atharva-veda, the Veda of spells and incantations. The 


importance of the Atharvaveda for the royal preceptor is indicated 
in the description by Kalidasa of the sage Vasistha as atharva-nidhi 
(Raghuvams'a, I, 59). The Mahabharata (XIII, 105, 14-45) de- 
clares the royal purohita, who knows the Atharva spells, as worth 
ten acaryas (E. W. Hopkins, Great Epic of India, 1902, p. 380), 
Manustnrti, which discountenances wrong practices (yamacara) 
alludes to the efficacy of magic (III, 59) when it declares that the 
house in which women pronounce a curse for not being honoured 
will perish completely as if destroyed by magic. Mauu also em- 
powers the oppressed Brahmana to " use in incantations the sacred 
texts revealed by Atharvan and by Angiras " (XI, 33). Buddhist 
and Jaina monks were forbidden to practise it, but apparently the 
prohibition was ineffective as Vis'akadatta (in the Mudrarakasa) 
refers to its practice by a Buddhist ascetic Jivasiddhi. The in- 
cursions of Shamanist hordes, like those of the S'akas and the 
Kusans, should have given an impetus to the practice of witchcraft* 
Bana describes a weird midnight incantation by Bhairavacarya 
seated on the chest of a corpse in a cremation ground for obtaining 
the position of a vidyadhara, and the dawn of prosperity to the 
line of Pu$yabhuti, the prince of SthanesVara (Thanesar) as the 
reward for protecting the wizard. The Puranas, especially the 
Saiva, and the tantras popularised magic. The Kadambari and 
the Das'akumaracarita contain allusions to magic and its efficacy. 
The spread of Sakti worship emphasised the popular belief in 
magic, which has always lurked on the country-side. 


52, //. 24-32 and 53, II. 1-4. SATI OR SAHAMARANA OR 

Kautilya condemns suicide of every kind and penalises it by 
post-mortuary punishments, designed to act as deterrents, and by 
punishments for those who defend suicide. The verses of Kautilya 
on the subject are these : (IV, 7, end) : 

Rajju-yastra-vijair-vapi kama-krodha-va&ena yah I 
Ghatayet tvayam Wmanam stri va papena tnohita II 

NOTES 187 

Rajjuna rajamarge tan candalena apakar^ayet I 
Na smas'anavidhiste$am na sambandhikriySstatha II 
Bandhus-team tu yak kuryat preta-karya-kriyS-vidhim I 
Tad-gatim sa caret pascat sva-janad-va pramucyate H 
Samvats arena patati patitena samacaran \ 
Yajanadhyapanad-yaunad tais>canyo apt samacaran II 
The reference in the passage to Sati is both implied and ex- 
plicit (stn va papena mohita). Dr. Altekar's statement that 
Kautilya * does not mention the custom (op. cit. p. 140) is not 

The self-immolation of Kalanos, which the Greek writers 
mention, though of a sage, suggests the existence of similar practices 
among women also. 

Vi^nusmrti (C. 100 A.D.) merely mentions the custom as an 
alternative to brahmacarya (mrte bhartari brahmacaryam 
tadanvarohanam va, (XXV, 14) and adds that a widow by joining 
her husband on the pyre accompanies him (XX, 36) : 

Mrtopi bandahavah S'akto nanugantum prtyam janam I 
Jayavarjam hi sarvasya yatnyah pantha viruddhyate II 

The Brahmamcal revival during the Gupta period led to its coming 
into prominence. Bhasa has some characters who commit sati. 
Kalidasa knows it, and so does S'udraka as well as of course 
Vatsyayana. An inscription of A.D. 510 mentions the sati of 
the wife of a general killed m battle (Gupta Inscriptions, ed. 
Fleet, p. 93). Harsa's mother died a sumangali by burning 
herself before her husband's death (which is suicide, not saha- 
marana) and his sister Rajya-s'ri was just saved as she was about 
to ascend the pyre. In the epoch of Rajput dynasties it gains sup- 
port. It is the age of the late smrtis. Critical writers like Medhatithi 
discounted it as opposed to the injunction against suicide. His 
remark on Manusmrti, V, 156, is worth citing : 

Pumvat strinam apt pratisiddha atmatyagah. . . . Satyam 
apt pravrttau na dharmatvam, evam iha (anumarane) apt 
na sastrayatvam . . . him ca pratyakqa-s'ruti-virodho 


ayatn-; ato astyeva patim anumaraqepi striyal} prati- 
$edhab (Jha's ed. I, p. 492). 

Devanna Bhaffa condemns It as (Vyavahara, in Smrti-candrika* 
ed. Mysore, p. 598), as an * inferior dharma,' (nikrst m a-phala). 

Bana naturally condemned it as the courtier of Harsavardhana 
(A.D. 606-649) in^ Kadambart, I, p. 308, ed. Nirnayasagara,) in 
view of the known views of his master, whose mother had become 
sati. The Rajatarangiiji refers to many cases of sati in Kasmir 
(VII, 481, 490, 858, 1380, 1486 ; VIII, 448, 1447 ; V, 206). 

" Tantra writers also joined the crusade. They pointed out 
that woman was the embodiment of the Supreme Goddess, and 
boldly declared that if a person burnt her with her husband he 
would be condemned to eternal hell " (Altekar, p. 1, op. cit. p. 147). 
Brhaspati describes the pativrata (chaste wife) thus : 
Arta arte, mudite hrta, prosite malina krs'a \ 
Mrte mriyeta ya patyau, sa stn ffieya pativrata II 
The description of the wife as dying when the husband dies 
may be poetic exaggeration or a reference to satt. (Sams. 483). 

Apararka marshals the authorities for Sati, and appears to 
defend it (see p. Ill, passage beginning ' Ima nan avidhava '). 
The chief smtfi authorities in favour of the practice are Angiras, 
Harita and Vyasa. Apararka (p. 112) quotes four writers, who 
prohibit brahmana widows from offering satt, and one of them 
cunously is Angiras : 

Ya strt brahmana-jatlya ntftam patim anuvrajet I 
Sa svargam fftmaghatena natmanam nc patim nayet \\ 
Paithinasi corroborates the dictum of Angiras and states that 
saha-marana is the rule for others than brahmana wives : 

Mrtanugamanam nasti brahmaqya Brahmas'asanat I 
Itare$am tu variianam strtdharmo ayam parafy smrtafy U 
Kamalakara Bhatta's mother Uma committed sati (Kane, 
p. 432), Nilakanfa was his cousin. The illustrious example of a 
sati m the family is a proof of their conviction of its s'astraic 
character, apart from verbal defence. 

NOTES 189 

Madhavacarya's defence of Sati, as not opposed to such Vedic 
precepts as those contained in lsa-upani$ad, 3, that those persons 
who commit suicide reach after death a world of intense darkness,, 
named Asurya-loka, is contained in his comment on Paras'ara- 
smrti, II, 32 (Vol. II, pt. i, p. 55, Islampurkar's edn.). His defence 
is natural, in the Brahmana revival that synchronised with the 
foundation of Vijayanagar. 

The holocaust following the death of Gangeyadeva of Cedi 
at Prayaf in A.D. 1038 is mentioned in an inscription published 
in Eptgraphia Indica, II, p. 3. 

The sati of large numbers after the death of a ruler came 
to mark social distinction. " When Ajit Singh of Marwar died 
in 1724, 64 women burnt themselves on his funeral pyre. When- 
Raja Budh Singh of Bundi was drowned, 84 women became sati " 
(Tod's Annals of Rajasthan, II, ed. Crooke, p. 837). "When 
Ranjit Singh of Lahore died, four queens and seven concubines 
ascended the funeral pyre. . . . Three women died with Maha- 
raja Kharag Singh, five with Basant Singh, eleven with Kis'ori 
Singh, twenty-four with Hira Singh, and 310 with Sucet Singh." 
(Altekar, op. cit. t p. 155). 


53, //. 13 to 54, 18. TREATMENT OF UNCHASTE AND 

Hindu law took a strict view of unchastity, when it was 
voluntary, whether in man or women. Apastamba imposes a deter- 
rent punishment on the unfaithful husband, by ruling that his 
expiation is wearing the hide of a donkey for six months, and 
begging from door to door in that guise, everywhere announcing his 
offence, (I, 9, 18) : 

Daravyatikrami kharajinam bahir-loma paridhaya dara- 
vyatikramine bhik$amiti saptagarani caret. Sa vrttify $an 
mas an. 


The direction to wives to treat their husbands with meekness 
and forbearance is not coupled with any reduction of rigor in the 
treatment of an unchaste husband. 

In the Vedic age, unchaste women were allowed to take part 
even in sacrifices after mere confession (Satapatha Brahtnaya, II, 
5, 2, 20). The leniency was continued by Vasi$tha (XXVIII, 2) : 

Svayam vipratipanna . . . na tyajya I 

Kautilya (p. 230) provides a punishment for a man vho defiles 
the daughter of his own male or female slave, and makes the 
adulterer responsible for the payment of a suitable nuptial fee to 
enable the girl to be married. He also rules that when a man 
has sexual relation with a woman held as slave on account of 
money due from her, he has not only to be fined but to provide for 
her clothes and maintenance. According to YajHavalkya, II, 290, 
a brahmana having intercourse with a slave woman, even though 
she is of lower caste, is to be punished. By a rule of Katyayana 
of general applicability, which is therefore applicable to adultery 
also, women should pay only half the fine that men should pay for 
the offence, and where the penalty is death in the case of men, 
women should be left off with mere mutilation, (v. 487 of Kane's 
edn.) The concession is on the score of the defenceless position of 
women, which calls for leniency. 

The idea that the man is more to blame than the woman in 
such cases is also implicit in the Mahabharata (XIII, 58, 5) 
rule that in cases of adultery or rape between persons of the 
same caste, the woman should not be turned adrift (tyajya), unless 
she has conceived. 

A wet-nurse (dhatrt) is placed by Narada (XV, 73-75) in the 
same class as the mother, mother's sister, mother-in-law, maternal 
ancle's wife, paternal aunt, pupil, sister's female companion, 
daughter, preceptor's wife, a women of the same gotra, a suppliant 
woman, the queen, a female ascetic, and a chaste woman of the 
highest caste, as a person whose violation will constitute an inexpi- 
able offence for which there is no punishment lower than the 

NOTES 191 

removal of the offending organ (cited by Apararka, p. 857). The 
idea is that the abuse of a woman who has placed herself under 
protection is specially heinous. It is equated with incest. 

The punishment for theft being death, and abduction of a 
woman being theft, it was punishable capitally. Vyasa (cited 
in Vyavaharamayfrkha, p. 135) includes the theft of women 
in nine kinds of theft. The same smfti rules (ib. p. 236) that the 
abductor of a woman (stn-harta] should be burnt in a raging fire 
bound to *n iron bedstead : 

Strl-harta lohas'ayane dagdhavyo vai katagnina I 
In the Naradaparis'i$ta (28) it is ruled that the entire property 
of a man should be confiscated if he abducts a woman, and he should 
suffer death if he abducts a virgin girl : 

Sarvasvam harato narim, kanyam tu harato vadhafy I 
The abduction of a married woman is held by Brhaspatr 
to be a crime of violence (sahasa) as well as theft, and Narada 
(XVII, 6) holds it to be among the most heinous crimes. 

The at at ay in, the most culpable offender known, being usually 
a synonym for assassin, is classed with the committer of arson, the 
poisoner, the armed robber, and the violent robber of land and women. 
The punishment for the at at ay in is death, according to Manu f 
(VIII, 350) and Vasitfha (III, 17), and he who slays him when 
caught red-handed can not be punished by the king, even if the 
culprit who has been slam is a learned BrahmaQa. Later on this 
was explained away as inoperative in the Kaliyuga in the case of 
Brahmanas, though its applicability for offenders of other castes was 
conceded. By a rule of Katyayana (v. 830 ed. Kane) rape was to 
be punished by the king with death : 

Strl$u krtopabhogasyat prasahya puru$o yatha \ 
Vadhe tatra pravarteta, kSryatikramayam hi tat II 
When tenderness for a Brahmana offender began to be shown 
by smartas the rule was made applicable only to non-Brahmaijas. 
(Vyavahara-mayukha, p. 224 and Vlramitrodaya, p. 504.) 
Unchastity, according to Manu (XI, 60) is an upa-pztaka. 


The expiation prescribed for it (ib. 118) is govrata and candrft- 
yaqa. According to Manu (XI, 177-178) an unchaste wife should 
be merely confined to the house and made to undergo these penances ; 
and by the general rule, already cited (infra p. 269 note) her 
penance will be half of what one of the male sex will have to 

A ravished woman is in result unchaste. But she must be 

Kaufilya deprives the habitually unchaste womasi only of 
subsistence in excess of 2000 panas. (Trn. Shama S'astri, 1915, 
p. 199). 



Vasistha (XXVIII, 2-4) : 

" A wife, tainted by sin, whether quarrelsome or a voluntary 
run -away, or the victim of an outrage, or the victim of thieves, 
is not to be cast away (nasti tyago). Let her courses be awaited 
for ; by them she will become pure again." Atn holds that a woman 
who has been ravished by mlecchas and evil men (papakarmabhili) 
is rendered pure again by performing the prajapatya penance and 
by her courses. (This verse occurs also in Paras'arasmrti, X, 25). 

Devala, who probably wrote about the time of the Musulman 
invasions of Sindh, rules that a woman, who has conceived through 
-one of another varna (i.e., the abductor) is rendered pure either by 
miscarriage of the foetus (vinisrte tatdli salyS, rajaso vapi dars'ane) 
or by giving away the child born of the conception, so that there 
might be (after her restoration) no mixture of castes (varnasam- 
karcrh.) (Devalasmrti, in Smritinam-samuccayah, Anandas'rama 
ed. p. 87, vv. 47-52). This is in harmony with the principle 
enunciated by Yajfiavalkya (I, 72) that * in adultery, purification 
accrues from the recurrence of the courses, but not if there has 
been conception, and that in the latter case, the wife should be 
put away.' Vijnanes'vara shows the spirit of reaction against the 
Jenient treatment of the woman, by explaining away the older rules 

NOTES 193 

in her favour as referring to ' mental adultery ' (manovyabhicara), 
and that where the father of the unborn child is a S'udra the woman 
must be cast away, in accordance with a rule of Manu (IX, 155). 
But, he shows some consideration to the unfortunate woman by 
laying down that by " casting away " (tyaga) all that is meant is 
that she should not be allowed to take part in the religious rites of 
the husband, as a chaste wife will be entitled to do, and that it is 
not intended that she should be driven out of the house, in which she 
may renjain in confinement. (Tyagas'ca upa-bhoga-dharma- 
karyayoh ; na tu nikasanam grhat tasyafy, ' nirundhyat eka 
ves'tnani ' iti niyamat). 

The same stand is taken by Apararka. : ' etacca manasa vya- 
bhicare, p. 98 ; ' sambhoga-samspars'a-sambhaana'SahSdhikara- 
viayas-tyagafy karyah, na tu punar grhan-nirvasananu- 
rtipa1i> p. 99. 

The opinion of Caturvims'atimatam is thus given in Nanda- 
pandita's commentary on Paras'arasmfti, X, 27 : 

Sudra-garbhe bhavet-tyagafy candalo jayate yatah I 
Garbhasrave dhatudoai1i caret-candrayaqatrayam II 

Catasra eva santyajyalt patane satyapi striy&h \ 
Svapakopahata ya tu bhartrghni pitr -putr a-ga H 

(ed. Benares, pp. 311-2.) 



The remarks of Al-Biruni, who is anterior to the great smartas 
of the twelfth century, relate to both the treatment of adulteresses 
and the Hindu, who having been enslaved by the Muhammadan 
conqueror, comes back to his country. He says (ed. Sachau, 1910* 
II, pp. 162-163) : 

" An adulteress is driven out of the house of the husband and 


I have repeatedly been told that when Hindu slaves (in Muslim 
countries) escape and return to their country and religion, the 
Hindus order that they should fast by way of expiation, then they 
bury them in dung, stale, and milk of cows for a number of days, 
till they get into a state of fermentation. Then they drag them out 
of the dirt, and give them similar dirt to eat ; and more of the like. 

I have asked the Brahmins if this is true, but they deny it, and 
maintain that there is no expiation possible for such an individual, 
and that he is never allowed to return to those condition^ of life in 
which he was before he was carried off as a prisoner. And how 
should that be possible ? If a Brahman eats in the house of a STudra 
for sundry days, he is expelled from his caste and can never 
regain it." 

The remarks of Al-Biruni show that the rules had hardened by 
his time, and that Apararka and VijnanesVara in explaining away the 
old considerate rules were only justifying current usage. 



The locus classicus among smrtis on the readmission of the 
patita (out-caste) is Devalasmrti, which is devoted entirely to the 
enunciation of means of restoring by suitable penances such persons 
to their old place in Hindu society. It consists of about ninety 
verses. But the Devala who is quoted by the great commentators 
seems to have been another, or atleast, his work seems to have 
been mainly in prose. (Kane, op. cit., p. 121). That his rules, if 
they had been known in Al-Biruni's age were not operative in 
Hindu society is evident from Al-Biruni, (supra, Note 212.) In 
the fragment, which now passes as his, he states that the expiations 
prescribed by him alone are valid, and that the rules of other sages 
are invalid, if against him (verse 72). 

The gist of his doctrine is that a person who had been carried 
away by mlecchas, and had contracted impurity by close association 
with them, in eating, living and even marriage, (which lead to loss 

NOTES 195 

of caste), can be restored to his old status by a bath in the 
Ganges and the performance of specified expiatory rites (prayasc- 
citta). Such restoration can take place even if the person had 
been away for twenty years : 

Grhlto yo balat mlecchaih paHca-^at-sapta va samah \ 
Das'adi vim&atim yavat tasya S'uddhir vidhlyate H 

The Mitakara has ruled that even if a person had been treated 
as civilly dead by the breaking of a pot, he can be taken back : 

Carttavrata ayate ninayerur-navam ghatam I 
Jugupseran na capyenam samvaseyusca sarvas'ali 'I 

(Cited m Dharma-pradtpa, p. 209). 

The following verses of Yamasmrti (V, 6-7) rule that persons 
who had been forced into slavery by mlecchas can be taken back 
after performing suitable prayascttta : 

Balat daslkrta yeca mleccha-candala-dasyubhih I 
As'ubham karitah karma gavadi-prani-himsanam I 
Prayascchittam ca datavyam taratamyena va dvijaih II 



The orthodox definition of a vratya is given in almost identical 
terms by Manu (II, 39-40) and YajSavalkya, (I, 37-38). The 
maximum limit for the performance of upanayana for dvijas 
(twice-born castes) is 16, 22 and 24 respectively for the Brahmana, 
Ksatnya, and Vais'ya respectively ; those who have not undergone 
such initiation in the Savitri-mantra and their descendants are 
vratyas unless they are redeemed by the performance of the rite of 
vratyastoma. The expiatory rites laid down for them by later 
writers include the Uddalaka-vrata, and the concluding bath 
(avabhTta-snana) of the As'vamedha (horse) sacrifice (V. N. 
Mandlik's Trn. of Yajnavalkyasmrti, 1880, p. 165, note 4). Manu 
proscribes even clandestine relations of dvijas with vratya women. 


(VIII, 373). Neglect of savitn will create new vratyas (X, 21). 
Sacrificing for vratyas is forbidden (XI, 198). 

See Nagoji Bhat Ja's Vratya-prayascittanlrtiaya and the Amber 
Maharaja Jai Singh's Vratya-prayascitta-samgraha (Benares, 
1927) for the attitude towards the rehabilitation of those who had 
become vratyas among ruling dynasties in the Mughal period. 


See Nagendranath Ghose, Indo-Aryan Literature and Cultural 
Origins (1934) for a new view of the Vratyas as a highly 
cultured non-Aryan people of the North East India, responsible for 
early Upanisad thought and the origin of Buddhism. They are held 
to have followed an exotic cult and ' become Aryanised, and 
Brahmanised ' (D. R. Bhandarkar, Some Aspects of Ancient 
Indian Culture, 1940, follows the line of thought developed 
by Mr. N. N. Ghosh). Mr. Ghosh points out that there were four 
kinds of Vratya-stoma (pp. 8-10) which may be classified as those 
of conversion, excommunication, and purification. The As'vamedha 
is regarded by Mr. Ghosh as a vratya institution, which was 
superseded by the Brahmanical Rajasuya (pp. 128ft, and 202). 
Vasisjha (XI, 76-79) lays down in regard to the reclamation of 
the vratya that he might undergo one of the following : the 
Uddalaka penance, a kind of candrayana, the As'vamedha, or the 
Vratya-stoma. Unless the ceremonies are done, the vratyas 
according to Vasisfha (XI, should not have upanayana, Vedic 
instruction or sacrifice or intermarry with those who are still in 
caste. The question became important when Hindu Kings who 
claimed k$atriya lineage, like S'ivaji, found that they were vratyas, 
through omission of the upanayana, ceremony, which S'ivaji under- 
went prior to his coronation, on the advice of Gagabhatja (Vis'ves'- 
vara Bhatta of Benares, the nephew of the famous Kamalakara 
Bhajta) who received a fee of a lakh of hons for officiating at 
fiTivaji's coronation (A.D. 1674). The official account of the 
coronation shows that the great Maratha ruler was made to follow 

NOTES 197 

strictly all the old rules laid for a Ksatriya king's installation, after 
undergoing s'uddhi. 

The fullest account of 5'ivaji's coronation is that in Malhar 
Ramarao Cijnis, Siva-cchatrapatice-caritra, ed. K. N. Sane, 1924, 
It is an almost contemporary document, and is based on reports of 
eye-witnesses and court officials. When S'ivaji decided on being 
crowned, precedents for the long discontinued coronation rites were 
diligently sought. Jai Singh of Jaipur had been crowned and had 
performed* a jyoti$thoma in Ujjain, and also a paundarlka yajHa. 
He was known to S'ivaji, having brought him before the emperor, on 
a safe conduct, which was repudiated. Under the orders of Jai Singh 
an extensive digest of Dharmavastra was compiled by Ratna- 
kara in A. D. 1713 and named Jay asimha-kalpadruma (printed, 
1925; vide Kane, History, p. 548). The procedure followed 
by the Rajput ruler was studied. But, it was deemed necessary to 
get a first-rate smart a from Benares, and Gaga Bhatta whose 
family originally belonged to Maharastra, was invited. As laid down 
in the s'astras, a sap tang a was appointed under the name of a$ta- 
pradhan so as to officiate at the ceremony. S'ivaji took an oath 
(pratijHa) at the coronation : to restore the world which had been 
overrun by the Muhammadans (Yavanakranta) and re-establish the 
Hindu dharma and to govern in accordance with the Dharmas'astras 
(ib. para 274), as befits a descendant of the ancient Sesodia line 
(sisodiya-kulanta utpanna ho-una kulabhu$ana hotsata kuladhar- 
ma-sthapana kelt). That his vow was kept is shown by his ordering 
the arrest of Sambhaji, for outraging a woman, contrary to Dharma 

(ib. para, 282) 




After the epic times, the first instance of the performance of the 
horse-sacrifice (as'vamedha) is that of Pusyamitra S'unga, who per- 
formed it twice in his reign (185-150 B.C.). Kharavela, the Jain king 
of Kalinga, performed the Rajasuya which has been regarded as even 
more significant than the As'vamedha, in 177 B.C. (R. D. Banerji, 


History of Orissa, I, p. 91) S'ri S'atakarni, the S'atavahana king, 
contemporary with Pusyamitra and Kharavela, performed also- 
the As'vamedha twice, like his enemy, the great STunga, whom he 
defeated in battle. Gautamlputra S'atakarni claims to be ' the unique 
Brahmana ' and the destroyer of the pride of the Ksatriyas. (Banerji 
op. cit., p. 118.) In the year 24 of the Kusan era a stone post oflthe 
horse-sacrifice (as'vamedha) was dedicated at Mathura. " On this 
stone post Vasiska is mentioned as the reigning emperor." (R. D. 
Banerji, History of Ancient India, p. 129). In the Nanagh^t inscrip- 
tion the widowed queen Nayanika, the consort of S'atakarni I, men- 
tioned above, claims to have performed (participated in?) many sacri- 
fices such as the Rajasuya and As'vamedha (Archaelogical Survey 
of Western India, V, p. 82). In the Gupta dynasty, Samudragupta r 
Kumaragupta I, and the later Gupta, Adityasena (c. A.D. 650, 
V. A. Smith, Early History of India, ed. 1924, p. 332) claim to have 
performed the As'vamedha. The Bharas'ivas are supposed to 
have performed at Benares ' ten horse sacrifices *. The Vakataka 
King Pravasasena did a horse sacrifice (R.D. Banerji, Anct* 
Hist, of Ind. t p. 1877). In the Dakhan, Pulaketfin I (c. 550) 
(Fleet, in Bombay Gazetteer, I, i, p. 181) performed it. Towards 
the end of the seventh century, Madhyamaraja Yasobhita of 
the S'ailodbhava dynasty (the name is significant of the origin 
of the family) of Orissa claims to have done an As'vamedha and 
a Vajapeya. 

In South India, the early Pallava king Sivaskandavarman 
(according to the Hirahadgalli plates, Epig. Ind. VI, p. 88) claims 
to have performed the Agnitoma t Vajapeya and As'vamedha 
sacrifices. The reference in the Udayendiram plates to an As'va- 
medha by an unmentioned king in late Pallava times is noteworthy, 
(Gopalan, Pall av as, p. 125). The Kadamba king Mayuravarma 
(who, like Pusyamitra was a Brahmajja) claims to have done an 
As'vamedha. In the Cola records, there is reference to only one 
As'vamedha and that in Rajadhiraja's time (Nilakanfba S'astri's 
Colas, II, p. 220) Krsna Yadava, the grandfarther of Mahadeva, 
the patron of Hemadri, claims to have revived Vedic sacrifices. 

NOTES ^99 



The great bha$yas are virtually nib and has, as they collect in 
the course of their comments on their originals all the relevant 
authorities supporting the text, or apparently going against it. 
Apararka's bhasya on YajSavalkya and Madhava's commentary 
on ParaVara are practically nib and has. Ballala Sena (A.D. c. 1168) 
composed, through or with the help of his guru Aniruddha, four 
digests ilamed sagara, viz., Acarasagara, PratitfhasSgara, 
Danasagara, and Adbutasagara. The last two have been printed. 
(Kane, op. cit. 9 pp. 340-341). 

Prataparudradeva of Orissa, who ruled at Kataka (Cuttack) 
from A.D. 1497-1532, is the reputed author of the digest Sarasvatl- 
vilasa, of which the Vyavahara part has been published 
(Mysore, 1927). 



" Hemadn and Madhava are the Castor and Pollux in the 
galaxy of dakinatya writers on Dharmas'astra M says Mr. Kane 
(op. cit., p. 354). He held the post of Karaqadhis'vara (Keeper 
of Records) of Mahadeva, the Yadava king of Devagiri (Daulatabad) 
in the Dakhan. His modest title disguises, as in the case of the 
famous Nana Fadnavis, the position of virtual premier. His 
Caturvargacintamani aimed at being an encyclopaedia of Dharma, 
and was designed to consist of five major sections, viz. vrata, dana, 
tirtha, moka and paris'ea. The sections on tirtha and mok$a 
have yet to come to light. (Kane, p. 354). King Mahadeva under 
whose command Hemadri wrote his digest, reigned from A.D. 
1260 to 1270. 



See Note 217 on S'lvaji's coronation, ante pp. 281-285. This 
extensive work is in 19 stabakas on kala t vrata, vraddha, etc. 
Composed about A.D. 1710 (vide, Kane, p. 548). 




There is nothing on polity in Hemadri's digest, and it makes 
only occasional excursions into the domain of vyavahara e.g., on 
sources of ownership (III, i, p. 525 if.), strtdhana, (III, i, pp. 530- 
531). These are his only digressions into law proper. In the 
bigger nibandhas, vyavahara and rajadharma were only part 
of the bigger scheme. Two parts only are devoted to these in 
Nllakantha's digest out of the twelve, and two out of fourteen in 
Laksmidhara's Krtya-kalpataru. In Candes'vara's Ratnakara, 
the treatment of Rajaniti was an after-thought, and vyavahara 
and vivada (law and procedure) were two sections in seven. In 
Smrticandrika, vyavahara was one of its six divisions, though now 
its best known ; the others dealt with samskara, ahnika t yraddha, 
asauca, and prayscitta. The Madanaratna-pradlpa had no sec- 
tion on Rajaniti and its vyavahara section was only one of seven. 
Other instances can be cited. 



The only works on Rajadharma or Rajaniti now extant, 
which form part of a nibandha are (1) Laksmidhara's Rajadharma- 
kalpataru, c. A.D. 1110, (2) Candes'vara's Rajanltiratnakara t c, 
A.D. 1370, (3) Rajanitiprakas'a of Mitramisfra, c. 1620, (4) Nlti- 
mayukha of Bhatta Nllakantha, c. 1635 and (5) Rajadharma 
kaustubha of Anantadeva, c. 1675. Among the parts on Raja- 
dharma in old digests which are lost must be mentioned king 
Bhoja's Rajaniti (A.D. 1000-1050, mentioned by Kane, op. cY., 
p. 719) and Rajadharma-kamadhenu of Gopala a contemporary 
of Laksmidharma as mentioned by the latter (Kane, p. 612 ; cited 
by CandesVara on pp. 2 and 4 of his Rajanitiratnakara t ed. 
Jayaswal, 1936). 

NOTES 201 



A vast literature has grown round the Kau\illya. For a dis- 
cussion of the authenticity, character and place of the Kautiliya in 
political thought see my Ancient Indian Polity, 2nd edition, 1935, 
and my Ancient Indian Economic Thought, 1934 passim. 



This has been edited by Pandit Is'varacandra S'astri, Calcutta, 
1917. The topics it deals with are, besides polity, selection of sites 
for buildings and construction of buildings, furniture-making, 
precious stones, ornaments, weapons, draught and other animals, 
vehicles and the building of ships etc. Bhoja has written on 
VcZstus'astra in his Samarangansutra (ed. Ganapati S'astri, 
G. O. S.) The miscellaneous character of the topics in the work, 
and the citation of Bhoja himself by name six times may justify 
the suspicion that it has been fathered on the famous king of 
Dhara. The polity part is of poor quality. 



The Manasollasa is an encyclopaedic work in 100 chapters, 
divided into five vims'atts, and comprising about 8000 s'lokas in 
anustubh metre. It gives a condensed account of many topics. 
The first two vims'atis, which have been printed both at Mysore 
and Baroda, deal with politics chiefly, dealt with in a very 
free spirit, so as to bring in medical treatment, horses, elephants, 
precious stones and alchemy. There is little originality. An 
account of tirthas (places of pilgrimage) comes early in the 
work, on the ground that tirthasnana is imperative for a king, 
and the holy rivers of the Dakhan within the author's dominions 
are specifically mentioned. The author is SomesVara, the son 


and successor of Vikramiditya VI. His reign extended from 
A.D. 1127 to 1138, its shortness being due to the great age to which 
Vikramaditya lived. It was composed in A.D. 1131 (Mr. G. K. Shri- 
gondekar's introduction to the Baroda edn. p. vi). 



All the three writers make a display of their learning and literary 
skill, literary effect being more their obvious aim than fcriginality 
in idea or in presentation of political views. The Nitisara of Kaman- 
daka is an obvious imitation of Kaufilya's work but its admini- 
strative, legal and economic material is rejected, and attention is 
concentrated on such minor matters of king- craft as the ma tidal as 
and diplomacy. The treatment betrays unfamiliarity with actual 
government. Somadeva-Sun was a Jain teacher (c. A.D. 950). His 
work is in simple, readable prose of great elegance. It is 
chiefly a rehash of some portions of Kautilya's work, whose phrases 
are woven into the texture of Somadeva's own sentences. It has 
been printed at Bombay with a baffling commentary, which contains 
many forged texts. 

For analysis of the contents of the Nltisara and the Nlti- 
vakyamrta, see Benoy Kumar Sarkar's Introduction to Hindu 
Positivism, 1937, pp. 381 ff., and pp. 420 ff. 

Hemacandra is another Jain writer, and a polyhistor. He 
lived between A.D. 1089 and 1173 under the patronage of his 
disciple Kumarapala Calukya, (A.D. 1143-1172) king of Anhilvad 
His Laghu-arhan-ntti was printed in 1906. For an analysis of 
its contents see Sarkar, op. cit. t p. 430. 

See note 28 supra. 



Nilakanfha wrote under the patronage of Bhagavanta Singh of 
Bhareha, near the junction of the Jumna and the Cambal (Carman- 
vat l). Bhagavanta was a Bundela chief of the Sengara clan. The 

NOTES 203 

digest was named after the patron as Bhagavanta-bhaskara. As 
the work was named Bhaskara ' the Sun/ each section was called a 
ray of the Sun (Mayukha). The division into twelve sections was 
perhaps suggested by the number of Adityas being twelve, (see 
P. V. Kane's ed. of the Vyavahara-mayukha, 1926, Introduction, 
p. xvii). 

Mitramis'ra, the author of Vtramitrodaya, was an a&rtta of 
the famous Blr Singh of Orccha, who ruled from 1605-1627, and 
was coeval with his patron Jahangir, for whose sake he assassinated 
Abul Fazl, in 1602 (Vincent Smith. Akbar, 1917, p. 305). JahSngir 
promoted Blr Singh when he came to the throne and showed him 
so much consideration that Blr Singh was promoted to a mansab 
of 3000 (see my ed. of F. Gladwin's History of JahSngir, 1930, 
p. 23). He was also permitted to fortify Datia and Orccha, rebuild the 
famous temple of Krsna at Mathura, and build many other temples. 
His revivalist zeal for Hinduism is responsible for the patronage 
of Mitramis'ra whose digest combines in its title his own name 
coupled as ' friend * with that of his patron. 

Anantadeva the author of Rajadharmakaustubha wrote under 
the patronage of Baz Bahadur of Almora (1662-1675). See Kane's 
History of Dharma&astra, pp. 452-453. 



The relevant information on Laksmidhara and his great digest 
and a consideration of its place in the history of Dharmas'astra is 
collected in my articles on Laksmidhara on pp. 148-168 and 199-223 
of the Madras Law Journal Commemoration Volume, 1941. The 
question of the alleged citation of VijSanes'vara by Lakmldhara, to 
which currency has been given by the high authority of Mr. Kane, 
who brought it into notice (History of Dharmavastra, pp. 28, 
317), is examined and it is shown that the position can not be 
sustained. The dates of the composition of the MitakfarZ and the 
Kalpataru are determined as c. 1120 and 1110 respectively, in 


modification of the dates given by Mr. Kane, who places the 
Kalpataru long after the Mitak^ara. Incidentally, from the Kal- 
pataru confirmatory evidence of the author of the Kamadhenu 
being Gopala, as suggested by Mr. Kane (pp. 294-296), is given, 
and he is shown to have been a contemporary and friend (vayas- 
yafy) of Lakmldhara. 


58, II. 1-6. CANDES^VARA 

Mr. Kane in his History (pp. 370-372) and Dr. Jayaswal in his 
introduction to the Rajanitiratnakara (pp. 12-22) have given the 
available information about the personal and family history of 
Can^es'vara, who, while liberally " borrowing " from his predeces- 
sors, particularly Lak midhara, to whom he is inferior in ability and 
erudition, claims superiority over them : 

Yasmin-na kiHcidapi S'amsati Kamadhenur- 
Yatretfatnalpatnapi K alp at ar urn a datte I 
Dhatte na gandhamapi kaftcana PSrtjatafy 
Tat-sarvamapi vivinakti nayapravlijah II 

(Candes'vara's preface, si. 25 to Kftyaratnakara, Bib. Ind., 
1925, p. 6). 


58, II. 16-32. N1TIMAYOKHA 

The paramount authority which his VyavaharamayUkha has 
attained through judicial decisions in the Bombay Presidency has 
invested all the other sections of the Bhagavanta-bhaskara with a 
reputation, which is somewhat unmerited. This is particularly the 
case with his Nitimayukha. It is a pedantic work. Its main 
reliance is on Varahamihira's BrhatsamhitS and the Nitisara of 
KSmandaka. Like other writers after the Musulman conquest, he re- 
commends ktya-yuddha and the use of poisoned weapons, destruction 
of the civil population etc. To show his want of realism, Mr. B. K. 

NOTES 205 

Sarkar has pointed out that Nilakantha's authorities are of the 
Gupta period (op. cit. t p. 547). 



At the beginning of the Nitimayukha, Nilakantha declares that 
the term Raja is valid (sakto) only in regard to the Katriya 
(K^atriya^matro) and is not a result of assumption of a kingship 
(Rajya-yoga). He argues that as kingship (rajya) follows corona- 
tion, and it is laid down that the Raj& should be crowned (Rajanam 
abhi$itlcet) which can only mean the Ksatriya. There seems here 
a tacit assumption that what he says in the book is applicable only 
to Katriya kings but the tenor shows that he was more of a 
realist than might appear from this initial argument. He describes 
the Vedic ceremony of coronation with vedic rites, (abhi$eka>vidhib t 
and abhi$eka-prayogaJi) which take up nearly two -fifths of the short 
treatise. It is noteworthy that the more rigid Laksmldhara, who, 
though a courtier, unlike Nilakantha who was a mere scholar, has 
omitted the Vedic rites and the full mantras from the Aitareya- 
brahmana in Rajadharma-Kalpataru, and given only three pages to 
the coronation. 



The subject is discussed in pp. 91-100 (Gujarathi Press 
ed. 1921). He quotes Manusmrti, VIII, 350-351, that ' one may 
slay without hesitation an assassin who approaches him with mur- 
derous intent, even if he be his own teacher, a minor, an aged man, 
or a Brahmana versed in the Veda, and by killing an assassin the 
skyer incurs no guilt,' and KStyayana (a verse not found in 
Mr. Kane's reconstruction of this jurist) that ' by slaying in battle 
one who approaches the slayer with murderous intent and attacks 
him the killer incurs no guilt accruing to the slayer of a Brahmana,' 
Nilakantha argues that the rules refer only to one who actually 


attacks and should not apply to a possible slayer who is asleep 
(ato jighamsata eva viprasya maranatn> na supffidefy) and that 
the use of the words " or " (va) in Manu's dictum and ' even * 
(api) in Katyayana's, shows that the killing of a Brahmana 
in such circumstances is not acceptable. VijSanes'vara, in com- 
menting on Yajnavalkya (II, 21,) by way of llustration discusses 
this injunction of Manu. The argument is that the words used 
do not constitute a vidhi (command) to the effect that a guru 
and others must be killed, but imply that if even the claying of 
a guru, who is entitled to reverence and filial affection, an old man 
and a child, who are objects of compassion are liable to be slain, in 
in such circumstances, how about others not possessing such claims 
to consideration even if they approach as assassins (atatayinah) ? 
The argument of the Mitak$ara, which Nllakanfha accepts, is 
further that there would be a conflict between precepts if the mean- 
ing is that such at at ay ins (a guru etc.) should be killed ; for 
Sumantu has ruled that though an assassin (at at ay in) can be 
killed, without guilt accruing to the slayer, it is otherwise with the 
killing of a Brahmana or a cow. There is also the injunction of 
Manu (IV, 162) that the teacher who initiates one, the teacher 
who has explained to him the Vedas, or any other teacher, and 
parents should never be troubled (na himsyat), as they are all 
inoffensive (tapasvi) persons. There will be also transgression of 
the Vedic injunction that one should not injure any living being 
(Na himsyat sarvani bhutani) which is a general interdict against 
all killing. The significance of the mention of the guru and others 
in the verses of Manu is that they alone should not be killed. It is 
concluded by Vijfianes'vara, who is following Medhatithi here, 
that the rule of Manu about Statayins will apply only to those who 
are not Brghmanas. 

Apararka holds that a Br&hmana ntatayin may be slain only 
when he is about to kill another, or is attempting to kill another ; 
i.e., he can be slain when caught in the very act of murdering 
another. If he escapes, he can not be killed later. He also* holds 
that if it is possible to prevent the murder short of killing the 

NOTES 207 

murderer (atatayin) to kill the latter will result in the guilt of 
brahmahatya (Brahman-slaughter). His opinion applies to 
atatayins of all castes. Medhatithi was of opinion th?t a murderer 
could be killed even after the commission of the crime, provided he 
is not a Brahmana, etc. VijSanes'vara held that a Brahmaija or 
Guru atatayin should be punished short of death, by suitable 
penances etc. 

The Smrticandrika (Vyavahara) dealing with the question 
applies tfce extension given, by parity of guilt, to the term atatayin 
by the smrtis (e.g., Vasistha, III, 16 who lays down that the follow- 
ing six are also atatayins : an incendiary, a poisoner, an armed 
attacker, a robber of wealth, a man who ravishes another man's 
wife, and he who takes away a man's field ; or Bhrgu, who adds 
to the above list the man who curses, who uses incantations, 
who is an informer, and one who always picks up the weak 
points of others.) The conclusions of the Smrticandrika are 
threefold : 

1. All atatayins, including a Brahmana atatayin may be 
killed when they attempt assassination. 

2. With the exception of the Brahmana, constructive atatayins 
like those who rob one of his field, or ravish another's wife, etc. 
may also be killed. 

3. The Brahmana is not to be killed for the constructive 
offence of atatayin, as explained by Bhrgu and Vasistha. 

In his Nitimayukha Nllakanjha accepted all the three proposi- 
tions, going thereby against the total exemption of the Brahmana by 
VijSanes'vara and Medhatithi. But, in his Vyavaharatriayukha, 
he went back on this total acceptance of the three rules laid down 
by Smrticandrika t and argued that in no circumstances should the 
Brahmana be killed, as the rules in Manu etc., referred to other 
ages than Kaliyuga. His conclusion is that ' in the Kaliyuga a 
Brahmana atatayin is not to be killed (even in self-defence), but in 
other ages this was allowed/ (See Kane's notes to his edn. of 
Vyavaharamayukha, 1926, pp. 417-422; and his Trn. of the 
same work, 1933, pp. 262-263, and particularly the notes.) 



59, II. 4-9. KtJTA-YUDDHA 

Ktya-yuddha is described by Nllakanfha (Nltimayukha, p. 98) 
as slaying by the use of poisoned weapons and so forth. He 
cites the recommendation of Kamandaka to carry on kufa-yuddha 
as an alternative (paryaya) or addition to open warfare. But 
the instances of ' unfair ' attacks, which he gives may be unchi- 
valrous, but are milder than those in use today among the nations 
of the West. 



See Dr. B. Bhattacarya's Introduction to the Raja-dharma- 

Kaustubha, passim and especially, 

p. xiv, chief queen and her accomplishments ; 

p. xiv, " If the king has several queens, then the eldest son, although 
born of a younger queen, inherits to the exclusion of other 
sons by older queens." Thus, primogeniture is laid down. 

pp. xiv and xv, constitution of the ministry. 

pp. xv-xviii coronation ceremony. 


60-61, II. 1-7. MlTRAMIS'RA'S VIEWS 

His view on the question of the qualification of the king is 

stated in Rajanitiprakas'a (pp. 10-11) in the following words : 

Rajas'abdarthah tavad vicaryate. Kim ayam rftjavabdo 
Yasmin kasmims'dt praja-palake vartate, uta k$atriya- 
jatau, him va abhi^ikta-k^atriyajatau varttata iti ? Tatra 
ave$tyadhikarane " Raja Rajasuyena svffrajya-kawo 
yajeta " ityatra purvapak^e likhitam 

Rajyasyakarta rajeti sarvalokesu glyate ' 
Mahavi$ayata caivam S'astrasyapi bhavi$yati II 

NOTES 209 

T asm ad brahmanadayo r&jyam kurvaqa rajana iti. 
Rajyam tu janapada-paripalanam. Lokaprayoga eva s*abda- 

rthavadharane pramaqam. Lake ca brahmanadi$u rajya- 

kartr$u rajayabdo vartate. 
Yaskopi, ' Raja rajate ' iti bruvan, yaugikam raja&abadam, 

is'vara-vacanameva abhyupaiti. Rajanotkar$as'ca praja- 

Vedepi. " Sonio asmakam brahmat}anam rajif," " Yo raja 

vat$aninam" " Sotno vai raja gandharve$u " ityadau apt, 

JS'vara-vacana eva pratlyate. 
Kos'e apt, " Raja tu pranatas f ea-samantas-syat " 
On primogeniture his views are given in pp. 35-38. He cites 
Manu in favor of the heritage going to the eldest son, and the 
express injunction of the Kalikapurana : 

Athoparicaram raja yauvarajye abhya$ecayet I 
Jyayamsam aurasam putram sarvarajagunairyutam II 
and the address of Das'aratha to Rama in the Ramayana : 
Adi$to hyasi me jyestali prasutah sadrs'o gunail} I 

Tasmat tvam pu^yayogena yauvarajayam avapsyasi II 

He lays down that a regal heritage should not be divided like a 
private estate : putrebhyo rajyam vibhajya na deyam (p. 39). 

The State's liability to make good stolen property is limited. 
After citing Yajfiavalkya's injunction that stolen property should be 
made good by the king (II, 36), Mitramis'ra adds (p. 127) the com- 
ment that what is lost through the theft of the servants of the 
owner need not be made good. ( Yattu dhanasvamina eva pari- 
carkair-nltam tattu rajHa na deyam.) 

Mitramis'ra 1 s treatment of the Mandala doctrine. See chapter 30, 
pp. 320-321. 


The following half-verse from the Mahabharata shows 
that every one is bound to fight for his country, if ordered to 


do so by the king, and that the Brahmana particularly should obey 
the mandate : 

Raffiam niyogat yoddhavyam brahmanena vis'esatah I 

Duties of a conqueror 

The rules from the 'smrtis are summarised by Mitramisfra on 
pp. 409-413. The main features of the rules are that the old 
royal family, which has been defeated, should be restored, that 
private looting should be forbidden, that all spoils r should be 
brought to the king, who will reward his soldiers as he deems fit, 
that if the former king is killed, one of the family should be crowned, 
that the conquered kingdom should not be destroyed (i.e., annexed) : 

Du$tasyapi narendrasya tad-ratfram na vinas'ayet (p. 411) 

and that the laws and usages of the conquered country should be 
respected and reinforced, (p. 411). The victor should conciliate the 
conquered people. 

Obviously, these precepts if accepted by the Mughal conquerors 
would be beneficial to the Hindu population. 



CandesVara is a wholesale borrower of Laksmidhara's Krtya- 
kalpataru, and practically every section of his Ratnakara series 
is built on the corresponding section of the Kalpataru. I am 
illustrating it in my edition of the Kalpataru. But he has not 
borrowed from Laksmidhara in the Rajaniti-ratnakara. The 
circumstance that it was composed when he was over eighty will 
explain its slim size, as compared with the bulkier seven sections 
of the original Ratnakara, and also his omission to make more 
use of Laksmidhara's work. There are only six citations of 
Laksmidhara by name (pp. 16, 20, 37, 70, 72, 73) in the Rajanlti- 
ratnakara besides a phrase from Nltikalpataru i.e., Rajadharma- 

NOTES 211 



Laksmldhara's Rajadharmakalpataru contains many direc- 
tions of a detailed character on the need to propitiate unseen powers 
and the ways of doing so. As a s'rotriya he must have believed 
in their efficacy, and felt a special competence to advise his king 
on the subject. That the calamities of the Musalman invasions 
in the eleventh and the twelfth centuries of the Christian era turned 
the eyes of the orthodox Hindus to such magical rites is illustrated 
not only by the space given to them in the Kalpataru but by the 
still fuller use made of such spells and ritual in the works of his 
very much younger contemporary Ballalasena, whose Danasagara 
for instance gives the ritual and mantras in extenso. It may be 
noted that Ballalasena wrote a special work on portents (Adbhuta), 
viz. Adbhuta-sagara, which was printed in 1905. This work was 
commenced in A.D. 1068 and was left incomplete by Ballalasena, 
and completed by Laksmanasena. All Ballalsena's works were 
written with the help of his guru Aniruddha, the author of 
Pitfdayita and Haralata. 




The Karnafa dynasty of Mithila, which had been ruling there 
from the last quarter of the eleventh century, when it became in- 
dependent under Nanyadeva, came to an end in 1324, when Hari- 
simhadeva retired to Simraongarh in Nepal after defeat by GhiySz- 
ud-din Tughlak (Jnd. Ant., 1884, p. 414). Candesfvara, like his 
father and grandfather, had been a Minister under this king. Canijles'- 
vara must have succeeded to the mmistership by 1310, as in 1314 he 
performed a Tulapuru$adana himself (Intrn. to Danaratnakara, 
MS, in B.O.R. Institute, Poona). After the withdrawal of Harisimha- 
deva to Nepal, a new dynasty founded by the Rajaguru or Spiritual 
Preceptor of the old dynasty established itself in Mithila under the 


suzerainty of the emperor of Delhi. The founder of the new king- 
dom was Kames'a or Bhaves'a, who commissioned CandesVara to 
compose the Rajanlti-ratnakara. Bhaves'a was a Brahmana, as a 
Rajaguru, and Brahamanas are interdicted from being kings. That 
Pusyamitra the S'unga king, did so made him a degraded " Arya " 
(Anarya) to the Brahmana poet Barjia, who condemned the act 
in the seventh century. (Trn. of Har$acarita t Cowell and 
Thomas, p. 194). 

The King's duty was to fight. A Brahmapa was fciterdicted 
from bearing arms, except m very abnormal circumstances. 
Apastamba laid down that a Brahmana should not touch weapons 
even for mere examination (Parik$arthamapi brahmana ayudham 
n&dadita, 1, 10, 29, 6). Baudhayana, against the specific prohi- 
bition of it by Gautama (to which he refers) allows a Brahmana to 
to take up the vrtti of a Ksatriya if he is not able to maintain him- 
self by teaching, sacrificing and receipt of gifts, but limits it to 
cases in which society is distressed by the spoliation of Br&hmanas 
and ill-treatment of cows and castes get mixed up (varnanam apt 
samkare.) (II, ii, 4, 16-18) In the same spirit the Mahabharata 
(XII, 78, 12-36) allows the Brahmana to take up arms in defence of 
the subjects of a kingdom attacked by dasyus, on the failure of 
Ksatnyas. Manu (VIII, 349-350) in the same spirit allowed the 
Brahmana to take up arms in defence of Brahmanas, women 
and Dharma. 

That, on a loose interpretation of the permission to the Brah- 
mana to live by the pursuit of arms, a large number became atleast 
candidates for recruitment to the army in the days of Kautilya, is 
inferrable from a discussion of the merits of a Brahmaija as a 
soldier. (Arthas'astra, p. 343). But there is nowhere any per- 
mission to a Brahmana to become king. The passages in Manu- 
stnfti (I, 98-101) exalting the Brahmana in the social scale have 
been wrongly interpreted by Dr. Jayaswal as sanction to the 
Br&hmana to exercise sovereignty. (Manu and Y&filavalkya, 
pp. 102-104). Throughout India's history in the very rare instances 
of a Brahmana becoming a king, he has had either to abandon his 

NOTES 213 

varna and become a Katriya, as did Mayura, the first king of the 
Kadamba dynasty Q. F. Fleet, Dynasties of the Kanarese Dis- 
tricts, in Bombay Gazetter, I, i, p. 286) or apologise for the act. 
Orthodox opinion was more outraged by Brahmana kingship than 
by Vais'ya or S'udra sovereignty. 


61, //. 21-22. RECOGNITION OF THE KING de facto 

CanflesVara (Rajanitiratnakara, pp. 2-3) discussing the 
question of who is king, states that consecration is a consequence 
and not a cause of kingship (Praja-svamitve rajatve prasiddho 
raja praja-palanavrtti-abhisekadayah asya karanamatram,) and 
accepts the same view as Kulluka that the word Raja is not restricted 
to Katriyas (Manusmrti-vyakhya, VII, 1) " Rajas f abdopi natra 
k$atriyaparafy" In classifying rulers from Samrat to Tributary 
(Karadafy) he adopts the view that all are entitled to the title Raja, 
and the Dharma applicable to Rajas would apply to all of them 
equally : " Sakala-rajebhyo yah karagrahl sa Samrat ; Samraje 
karado yali sa Sakarah ; svecchaya karado Akarafy. Smrttadau 
api Rajattvena prakhyatah. Loke tu, Rajett Sakarali, Cakra- 
vartl, Samrat, Adhls'varo, Maharaja iti prastddhafy, vis f e$aprati- 
patyuparodhat. Parantu, trayaqam api Dhannas-samameve." 
(Rajanltiratnakara, p. 4). 



Rajadhane diua-anatha-adi-sakala-praqinam ams'itvam ; 
bahunayakatvat rajya-vin&s'asca iti yuktify iti Gopala- 
Lak .mtdhara-Srikaradayafy. (ibid., p. 72). 


This occurs in the Reflections on the French Revolution. 
" Society is indeed a contract. Subordinate contracts for objects 
of mere occasional interest may be dissolved at pleasure but the 


State ought not to be considered as nothing better than a partner- 
ship in pepper and coffee, calico or tobacco, or some other such low 
concern, to be taken up for a little temporary interest, and to be 
dissolved by the fancy of the parties. It is to be looked on with 
other reverence ; because it is not a partnership in things subservient 
only to the gross animal existence of a temporary and perishable 
nature. It is a partnership in all science ; a partnership in all art ; 
a partnership in every virtue, and in all perfection. As the ends 
of such a partnership can not be obtained in many generations, it 
becomes a partnership not only between those who are living, but 
between those who are living, those who are dead, and those who 
are to be born. Each contract of each particular state is but a 
clause in the great primeval contract of eternal society, linking 
the lower with the higher natures, connecting the visible with the 
invisible world, according to a fixed compact sanctioned by the 
inviolable oath which holds all physical and all moral natures in 
their appointed place. This law is not subject to the will of those 
who by an obligation above them, and infinitely superior, are bound 
to submit their will to that law." (cited in J. Mac Cunn, Political 
Philosophy of Burke, 1913, pp. 59-60.) The view of Burke very 
closely approximates to the Hindu view of the eternal social order, 
as I have pointed out in previous works of mine. 



The idea of the king's divinity is enshrined in the identification 
of the king with Vinu. The same idea applied to the subject 
(Prajs) invests the latter with divinity and inviolability. Thus, m 
the Mahabharata, SFantiparva, 59, 106, it is said m the coronation 
oath that the people of the country (bhauma) are God (Brahma) 
and that in protecting the people the king is serving God : 

Pratijftam ca abhirohasva manasa karma^a gira I 

( Palayi^yamyaham bhaumam Brahma ' styeva ca-asakrt II 

NOTES 215 

The passage cited by Candes^vara ends thus : 

* Adyarabhya na me rajyam ; raja ayam rak$atu frrajah ' I 
Iti sarvam Praja- Visnum sakstqam s'ravayed-muhufy II 



Can^esfvara states expressly in the second verse of the intro- 
duction to the Rajanltiratnakara that he composed it by command 
of King Bhaves'a : 

Raffia B haves 1 ena ajttapto Rajanlti-nibandhakam I 
Tanoti Mantrinam aryah s'riman Caqdes'varafa kritl II 
Dr. K. P. Jayaswal (Rajanltiratnakara, Introduction, p. 23) 
shows that Bhaves'a was otherwise known as Bhavasimha, and that 
he was the younger brother Kames'a or Kames'vara, of the family of 
the Rajaguru of the Karnata dynasty of Mithila, who was set up as 
king in place of the old line, by the Delhi emperor, about A.D. 1370. 
Can^es'vara must then have been eighty-five. " Evidently he enjoyed 
a long life like his grandfather Devaditya. This record for old age 
and mental vigour is repeated in his family by Vidyapati who 
lived under successive sovereigns of the dynasty of Bhaves'a." 
(to., p. 25). 

188 (See Note 81) 

The matter is argued in Jainiini-sutras, VI, iii, 13-41. The 
purvapak$a is stated in sutra 13 that in the absence of the prescribed 
material no other should be used as a substitute. The reply of 
Jaimini is that the command being general doesj 
use of the substitute, i.e. the command is 
formance of the sacrifice (Yaga) and not it 
the Veda indicates the substitute. But 
for the deity invoked in a sacrifice, the fire, 1 
(sutra 18) nor should there be a substitute fl 
ly forbidden (sutra 20). In regard to the atta%<|rftof AWfr\St%f th* 


sacrifice (phala) there cannot be a substitute for the yajamfina. 
(sutras, 9, 21.) Where a number of persons are engaged in a 
sacrifice and one of them is missing or incapacitated a substitute 
can be used (22). But the substitute is only a servant so far as the 
fruit is concerned (26). When any material is lost or unavailable, 
anything of the same class can be used (27). It is unreasonable not 
use a substitute (30). In the Veda it is laid down that if Soma is 
not available putikn (a plant resembling Soma) may be used : 

Yadtsomamavindeta putik&nabhi$unuyat I * 

If a substitute is lost, it should be replaced by an article re- 
sembling not itself but the original (32). If the principal 
(nmkhya) becomes available, after the substitute is used, the former 
should be used, as the substitute is only to act for it, in its absence 
(35). This may be done even in the middle of a sacrifice (36). 
Sometimes the substitute may be more efficacious than the pre- 
scribed original, and in such a case can the substitute alone should 
be used, since the object is more important than the article to be 
used as prescribed ? (39-40). Jaimmi replies that it should not. (41). 



(To be read with Note 130.) 

In Mimamsasutra (VI, i, 17) it is laid down that the husband 
and the wife possessed of wealth are entitled to perform the same 
sacrifice. (Svavatostu vacanadaikakamyam syat) depending 
on the Vedic injunction : 

Dharme ca arthe ca kame ca anaticaritavya I 
Sahadharmas'caritavyafy. Sahapatyam utpadayitavyam II 

" She should not be discarded in religious affairs, business and 
desired objects ; all religious acts should be performed together ; 
children should be brought forth together." (M. L. Sandal's 
Trn, p. 303). 




Abul Fazl 41, 203 

Scara 16, 23 ; 

practice of good men in ac- 
cord with vedic injunc- 
tion 31 ; 55, 158 
Acaradar&'a 129 
Acarasagara 199 
Acarendu of Narayana 88 
Adbhutasagara 199, 211 
Adharma 35, 94 
Adityasena 198 
Adoption 98 

as a fiction in law 111 ; 170 
adr$ta 94 

Advaita 49 

agama 156 

Ahalya Bai Holkar 88 

Ahalya-katnadhenu 88 

Ahmadnagar, Sultan of 130 

ahnika 200 

Aitareya-Brahtnana 59, 170,205 
Ajivakas 12, 177 

Ajit Singh 189 

ajya 119 

Akbar 41, 60, 130, 203 

Al-Biruni on the treatment of 

women in India 54, 193-194 
Alexander 142 

Alma mater 1 



Altekar, Dr. A. S. on Rastra- 

kuta administration 143 ; 
on upanayana for women 

165-6; 169 
status of women 171 ; 173, 

180, 184, 187, 188, 189 
Altindischen Rechts Schrif- 

ten 91 

Anantadeva 31, 57, 58, 59, 

130, 200, 203, 208 
Anarchy, Horror of 102 

evils of 146 

(see Arajata) 
Ancient India (Rapson) 86, 

115, 124 
Ancient Indian Culture, study 

of 67 

Ancient Indian Economic 
Thought 68, 78, 107, 171, 


Ancient Indian Polity, 68, 76, 
78, 82, 83, 84, 86, 101, 

102, 122, 133 
Ancient Law 69, 74, 109, 110, 

111, 168 

Andhras 142 

Anga 160 

Angiras 116, 167, 186, 188 

Aniruddha 41, 211 

Annals of BQRI, 1940 126 
Annals of Rajasthan 189 

Antalcidas (King) 124 



apad- dharma 


12, 148 
48, 161-162 
41, 54, 57, 76 

on sources of Vidya- 95 ; 
129, 152, 188, 191, 193, 

194, 198, 206 
Apastamba 16, 24, 50-51, 87, 

93, 148, 162 
S'loka Apastamba 163 ; 

171, 173, 182, 184, 189, 212 
apurva 25 

Arajata 45, 102 

(see also Anarchy) 
Archceological Survey of 

Western India, V 198 

Aristotle 6 

Arjuna 34 

(see Kartavirya) 

artha 29 

Arthas'astra (general) 26, 43, 82 

Arthas'astra 5, 6, 7 

as the sixth veda 1 1 

secular character of 12 

differences with Dharma- 

sfastra 13 

no real conflict with Dhar- 

mas'astra 13, 82-83 

Mimamsa rules of interpre- 
tation applied 13-14 ; 
unacceptable to the Bud- 
dhist because of its sfruti 
source 14 ; 15, 16 ; 
as public law 23, 24 
education of a prince in 46, 56 ; 
revived interest in the 64 ; 
striking resemblance with 
European Cameralism 68 ; 

76, 77, 78, 84 

Kaufilya's own bhasya on 87 
as planned economy 92 

differences with Rajaniti 
and Dharmas'Sstra 92-93 ; 



classification of smrti in 98 
schools of Dharmas'astra 
recognised by 1 1 2 ; 1 1 3, 
133, 139, 141, 148, 149, 158 
201. 212 

Arthas'astra of Kautilya the 
locus classtcus of Indian 
Polity 5 ; 6, 19, 56 

arthavada 81 

Arya ' 48 

Aryavarta limits of 159, 161 
Asahaya-bhasyas on Manu, 

Gautama, etc. 18 ; 40, 87 
asavarnavivaha _ 52 

As'oka patronised Ajlvakas 

12; 43 

granted a respite of three 
days to offenders who were 
punished between sent- 
ence and execution 44, 77 
alleged case of change in 

Law 135 

Prohibition of Vedic sacri- 
fices by 138-9 
Rock Edict I 138 
Pillar Edict II 138 
Pillar Edict IV 136-7, 138 
Pillar Edict V 138 
Pillar Edict VII 138, 140 
Asoka's dharma is Hindu 140 
Rock Edict V 140 
and Dharmavijaya 140 
As>oka (Smith) 137, 140 
asprsya 49 
_ reduction of the rules of 166-7 
As'ramadhanna 26, 39 

(see also Dharma) 
Astrology 26 

asura 50 

Asuravijaya 140 

Asfvaghos.a 158 

As'valayana-grhyasutra 87 
AsVamedha 38, 54, 60 




performance by kings of 
dubious caste 122, 197, 

198 ; 123, 166, 195, 196 
Arthas'Sstra included under 

11; 76, 77,177,185, 186 
atatayin 53, 83, 191, 206, 207 
atides'a 118 

atmahatyf 52 

atmanastustil} 47 

Atri 53, 192 

Aufrecht 5 

Autobiography of Max Mueller 


Aurangazib 41, 130 

Authorities conflict of 96, 99 
Ayurveda 26 


BALAMBHAfTA Payagunde 88 
Balambha{tiya 88 

Bali 49 

Ballalasena 41, 56, 198, 211 
BSna 52, 106, 188, 212 

Banerjee B. 72 

Banerji, Gurudoss 171 

Banerji Sastri, Dr. A., 57, 84 
Banerji, R. D. 124, 183, 197 
Basant Singh 189 

Baudhayana 16, 90, 91, 116, 
156, 157, 159, 160, 162, 

169, 177, 183, 184, 212 
Baudh ayanaparis'i$ta 170 

Baz Bahadur 203 

Besnagar 115 

Bhadravarman of Campa 45, 145 
Bhadresfvara 145 

BhagavantaBhaskara 58, 203, 


Bhagabhadra King, Kas'iputra 


Bhagavanta Singh of Bhareha 202 
Bhagavata, Sri 164 


Bhagavadgl\a 115 

Bhakti 38 ; 

faith in God in preference to 

sacrifices recommended 115 
Bhaktimarga 49 ; 

the struggle of its adherents 

with smartas 168 

Bhaktipraka&a 115 

Bhandarkar, D. R., 137, 138, 


Bhandarkar, R. G. 168 

Bhallavins I$Q 

Bhanu grandson of Sarikara 

bhaffa 130 

Bhairavacarya 186 

Bharas'ivas 14, 39, 122, 123, 198 
Bhasa 187 

bha$ya 18, 19, 20, 22, 84, 87, 199 
Bhasyakaras 19 

Bhattacharya, B., 208 

BhaJJasvamin commentary on 

Kaujillya 84 

Bhavi$yapuraqa 97 

Bhavanaga J23 

Bhaves'a 212, 215 

Bhoja 41, 56, 129, 200, 201 
Bhrgu 207 

Bhupala-Krtya-Samuccaya 129 
Bhuvaraha 125 

Bir Singh, patron of Mitra 

Mis'ra 60, 203 

Bombay Gazetteer 145, 213 
Bombay, University of Its 

school of Sociology 2, 67 
Borradaile-translation of Vya- 

vahara-mayukha 7 

Brahman, Immunities of a 75-76 
Brahmapuraqa 177, 182 

Brahmasutra 13 

Breloer 92 

Brhadratha, the last Maurya 

ruler jQ 6 

Brhann&radlyapur&na 162, 
176, 185 




Brhaspati 6, 20, 40 ; 

accepts usages of caste of 

pratiloma unions 48 ; 

pleading for the inheritance 
of the childless- widow 51 ; 


on Nyaya 114 ; 

on <****! 15; 116,121,134, 


onyukti 153-4; 155 

on the rights of women 172 ; 


Brhaspatismrti 18, 70, 121 

Brhatparastera 163 

Bfhatsamhita 85, 204 

BrKnahatti 44, 139 

Buddha, the 17, 128 

Buddhists, reference in Manvr o 

to customs of 12 ; 

abhorrence of 48 ; 77, 78 ; 

Buddhism, under the Mauryas 

37; 51, 122; 

Mimamsa effect on 125-7 ; 
influence of Sankara on the 

decline of 127-8 ; 

as influencing ideas of sex- 
equality 175 ; 
Buehler 155, 157, 171, 173, 178 
Burnell A. C., translation of 
Dayabhaga of Madhava's 

bha$ya 72 

Burke, Edmund 61, 213, 214 
Butuga II 145 

CALCUTTA-University of 

Carmichael professorship 2 
Special Readership lectures 5 
Tagore Law Professor- 
ship 73 
Cambodia 49 
Campa, Kaugginya emperors 

of 45, 145 

G*mp8(R. C. Majumdar) 145 


Can4es*vara, sections omitted 
by 29, 96 ; 41, 57, 61, 
62, 108, 129, 200, 204, 

composed Rajaniti-ratna- 
kara by royal command 

Candragupta-(Maurya) 140, 

141, 185 

Candragupta II 52, 85, 148, 183 
CSndrayana 192, 196 

Caraqavyuha 76 

Contra 47, 62, 132, 148 

Castor 199 

Castrense peculium 50, 168 
Caturvargacintamani 56, 199 
Caturas'rama 29 

Caturvarna 29 

Caturvims'atimata 40, 54, 193 
Catussatltlka 107 

Celibacy, condemnation of 

prolonged 176, 177 

Chandogya Upam$ad 77 

Chips front a German Work- 
shop 89 
Cho Dink rock inscription 145 
Cikitsaprakasa 95 
Cintamani of Vacaspati 

Mis'ra 130 

Citnis Bakhar 60 

Citnis, Malhar Ramarao 197 

Civil Law 16, 20, 23, 40, 50 ; 

Indian law of person and 

property 50, 56 

Codanalingatides'a 118 

Code of Gentoo Laws 8, 71, 72 

Colas 45, 142 

their claim to follow Manu's 

lead 145-6 

Colebrooke, H.T., his digest 9 ; 
his study of Mimamsa 21 ; 

71, 72, 88 89-90 ; 
Considerations of Hindu 
Law 72 




Coronation release of prison 
ers at the time of 44 

omission of the rite of 46 
Corpus Inscriptionum Indi- 

carum III 125 

Cowell, H. 73 ; 

and Thomas, F.W. 212 

Crooke, W. 189 

Cyavana 167 

Custom apd Law see Law. 









38, 119, 169 

Danda divine origin of 13, 102; 
34, 80 

Dan^aniti 93, 102, 103, 134, 148 
Danga-parusya 78 

Dandin 44, 45, 135, 136 

Das'aratha, grandson of As'oka 

patronised Ajivakas 12, 77 
Das'akumaracarita 135, 186 
DasWvamedha-ghat 1 23 

Dattaka-candrika 72 

DattakantimSmsa 72 

Dattatreya 106 

Dawn of New India 72 

Day a 70, 71 

Dayabha&a 9, 10, 19, 70, 72, 73 
Dftyakramasamgraha of Sri 

Krna 9, 72 

Desracara 133 

Devadu$aka 76 

Devagiri 40, 41, 129 

(see also Yadavas of Devagiri) 
Devala on reinstatement of 

fallen women 53, 54 ; 


claim to supersede other 
smrtis 128; 169, 170,173, 

192, 194 

Devalasmrti 40, 192, 194 

Devanna Bhatfa 52, 180, 188 
Devf-candragupta 183 

Devasthali, G.V. 126 

Dhamma (Buddhist) 45 ; 

of the Rock and Pillar Edicts 


Dharma-mahamatya 143 

Dhanya Vinu 124, 125 

Dharma t Indian literature on 

5, 20, 24 ; 

as fixed in action 25 ; 

compared to Law of Nature 

divided into pravrtfi and 

nivrtti dharma 26 ; 

Sadharana and Asadha- 

rana 26 ; 

relating to as'rama 26 ; 

&n<* 26 ; 

nimitta 26; 27,29,30,31, 

divine character and uni- 

vejrsal applicability of 35 ; 
in times of stress 36 ; 

as good for all time 37 ; 39 
Hindu dharma under 
Muhammadan rule 41 ; 


Asfokan prohibition of cast- 
ration 44; 45; 
the functions of the state are 

in the interests of 46 ; 47, 48; 
elasticity of 48-9 ; 

indicated by good conscience 

50 ; 52, 55 ; 

literature 56 ; 

breach of Dharma 61 ; 62, 

mahajana path of 93 ; 




connotation of 93-4 ; 

classifications of 94 ; 

comprehends all knowledge 

94-95 ; 

adjustment to capacity of 109 ; 
absence of the influence of 
legal fictions in Hindu 
Dharma 110-111; 132, 

133, 138, 140, 156, 157 
apad'dharma 161 ; 162 

relaxation to yuga-dharma 

163-164; 183, 184, 197 

Dharmadhikari 45 

same as Dharmamatya 143 

Dharmakos'a 25 

Dharmankus'a 143 

Dharmamatya 45 

same as Dharmadhikari 143 

Dharnta-maharaja as title 

among Pallava Kings 143-4 
as a Kadamba title 144 

Ganga 145 

in Campa 145 

Dharma-pradhana 143 

Dharmapradlpa 162, 164, 166, 
167, 176, 177, 181, 184, 

185, 195 

Dharmaraja-ratha "* 144 

Dharmarajas 45 

Dharmaratna of Jimuta- 

vahana 70, 73 

Dharmas'astra 5, 6, 7, 8 ; 

vyavahara content of 9-11, 

comparison with Arthas'astra 


Arthas'astra core of 14, 84 ; 
Rajadharma content of later 
digests belongs properly 
to, 15 ; 17, 20, 21, 23, 24, 


parts of Kalpataru described 



scope and content of 29 

the only relevant content of 

the Veda 30, 32 

vastness of D. literature 33, 

causes of its growth without 

interruption 34 

Schools of and progress 36 ; 
37, 41, 44, 45, 56, <60, 62, 


as priestly twaddle 68 

small content of Law and 

polity in 70, 71 ; 

early English translations 

of 72-3 ; 75, 78, 82 ; 
attitude of Indian courts to 

digests under patronage and 

authorship 129; 

difference between A r t h a - 
s'a'stra, Dharma-s'astra 
and Rajaniti 92-93 ; 

dharma-sthanas 20 

omission of Rajadharma and 

Vyavahara in digests 95 ; 
composition of Dharma 
sfastras in periods of civil 
troubles 101 

in the Musalman period 1 29, 


artha content of 133 ; 148; 
ekavakyatvam 150-152 ; 167, 

168, 197, 199 

Dharma-Saukhya 26 

Dharma-sthiya 78 

Dharma-sutra 70 

Dharma-sthanas 26 

Dharmavatara, title of Mara- 

simha 145 

Dharmavijaya 45, 140, 143 
Dhruvadevi 183 

Dialogues of the Buddha 86 
Dillpa 146 



Divorce 175-176; 

(see marriage) 
Doctrine of Representation 

Doctrine of Weakness 

(see yugadharma) 
Dvaitanirnaya 42, 130 

Dvaita-viveka 130 

Dynasties of the Kanarese 
Districts 145, 213 

Early History of India 198 
Early History of Institutions 

69, 70, 90 

Eggeling 120, 139 

Ekavakyatva 47, 112, 150-152 
Epics as fifth and sixth cate- 
gory of the Veda thrown 
open to women and s'udras 


Epigraphia Carnatica 144 

Epigraphia Indica 143,182,189 

Fictions in Hindu Law Texts 
79, 80,97, 110, 111, 150, 

151, 152 

Filius fatnilius 168 

Firuz Shah Tughlak 130 

Fleet, J.F., 122, 125, 139, 

145, 187, 198, 213 
Formichi 85 

Freedom based on the dis- 
charge of the state duty of 
protection 45 



GSga Bha^a as chief priest 

in the coronation of S'ivaji 

60 ; 130, 196 

(see Vis'ves'vara Bhajta) 


Gaharwars of Kanauj 40 

Gains of Learning Act 168 

Gagapati S'astri, T. Maha- 

mahopadhyaya edition of 

Arthas>astra 19 

edn. of Kamandaka's 

Nttisara 84 ; 86, 87, 201 
Gandharva 50 

Gafigas 39, 45, 144 

Gangas of Talkad 145 

Gadgeyadeva 53, 189 

Gaudas 112 

Gautama dharma-sutra o f 

Asahayaon 18 ; 87, 92, 114, 

120, 149, 156, 162, 171, 

182, 183, 184, 212 
Gautamiputra S'atakarni 198 
Gentoo Code of Halhed 71 

Gharpure, J.R. 96, 117 

Ghiyaz-ud-din-Tughlak 21 1 

Ghosh, Nagendra Nath 196 
Ghosal, Dr. U.K. 107 

Golden Age reproduced by a 

good king 34 

(see Ramarajya) 
GoldstQcker 72 

Gopala 41, 129, 200, 204, 213 

(see Kamadhenu) 
Gopalan, R. 143, 198 

Govinda Das, Babu 88 

Govindacandra of Kanauj 

Govindasvamin on Baudha- 

yana-dharma-sutra 86, 87 
govrata 192 

Great Epic of India 186 

Grhasthas'rama (see marriage) 
Grhya-sutras 68, 177 

Griffin 149 

Gupta Inscriptions 122, 123, 

Guptas 59 





HALHED trn. of the Sanskrit 
digest of VyavahSra, Gen- 
too Code 8 ; 71, 72 

Haradatta 18, 173 

Haralata 211 

Harinatha 129 

Haristeandra King 1 70 

Harisimhadeva 211 

HSrlta 16, 165, 184, 188 

Har$acarita 106, 183, 212 

Harsavardhana 187, 188 

Hastings, Warren 8, 88 

Heliodorus the Greek envoy 


the Vainava Greek 124 

Hemacandra 5, 15, 56, 202 

Hemadri 41, 56, 101, 115, 129, 

181, 198, 199, 200 
Henry VIII 52 

Hindu Law in Its Sources 171 
Hindu Law and Custom 75, 101 
Hindu Positivism 85, 92 

Hindu Political Theories 107 
Hindu Polity 107, 147 

Hindu University Benares 
specialising in Indian Cul- 
ture 1 
the vision of its founders 2-3 
Maijlndra foundation 5 
Hirahadgalli plates 198 
hiranya 119 
Historical Introduction to 

Roman Law 168 

History of Dharma-Sastra 

Vol. I 70, 197, 203 

History of Hindu Law 1 7 1 
History of India 198 

(see Banerji, R.D.) 
History of India (Jayaswal) 

144, 145, 147 

History ofjahangir 203 

History of Orissa 198 

History of the Pallavas of 

South India 143 

Hopkins 175, 186 

Hrdayadhara, father of Lak- 

smidhara 57 

Hultzsch, Dr. 141, 144 

Huns, as worshippers of Visnu 
124, 125 

Imperial History of India 183 

(see Jayaswal) 
Index Verborum to the 

Arthas'astra 91 

India, aspects of barbarian 

rule in 147-8 

Indian Cameralism, Calcutta 

Readership Lectures on 68 
Indian Philosophy 77, 126, 127-8 
Indian Positivism 202 

Indo-Aryan Literature and 

Cultural Origins 196 

Inscriptions of As f oka 141 

Isvara-candra S'astri, Paijdit 201 
Itihasa Arthas'astra as part 

of 11; 62, 77, 157 


JACOB, G.A. 110 

Jagannatha 8, 10, 21 

JagannStha-Tarka paficanana 

71, 72, 88 

Jahangir 41, 60, 130, 203 

Jaimini 19 

definition of Dharma 80 ; 

sutras of 125, 150, 215, 216 


Jains abhorrence of 48; 77, 


Jaisingh (of Amber) 60, 196, 197 
J.A.S.B. 143 




Jaunpur (sultan of) 130 

Java 49 

Jayasimhakalapdruma 56, 

197, 199 

Jayaswal, Dr. K. P. 24, 39, 
51, 57, 79, 84, 92, 107, 
122, 132, 144, 145, 147, 
149, 159, 161, 171, 175, 

200, 212, 215 
Jha, Dr. Qanganath 94, 116, 

117, 153,170, 188 
Jimutavahana 8, 9, 70, 72, 73, 

112, 121 

JIvasiddhi 186 

Jlvananda 154 

JBBRAS (1925) 129 

Jolly 23, 101, 170, 171 

Jones, Sir William 69, 88 

Journal of the Benares 

Hindu University 183 

JRAS, 1909 and 1910 124, 139 
Jyoti$aprakas f a 95 

Jyauti&a Saukhya 95 


KADAMBAS 39, 45, 144, 198 

Kctdamban 186, 188 

Kalanirnaya 10, 73 

Kalanos 187 

Kalaviveka 10, 70, 73 

Kali 46 

removing the taint of 148 

KalidSsa 45 

on Manu's ideal 146 

idealised gandharva unions 

Kalikapurana on adoption 

31, 98, 170 

Kaluga 160 

Kalivarjya 38, 39, 55, 151, 

176, 181, 183 

paper by P. V. Kane on 
181 ; 184, 185 


Kaliyuga 38, 163, 166, 177, 

181, 182, 183, 191, 207 
Kalpasutra and Vedic study 

17, 20, 84 

Kama 29 

Kamadhenu 41 

(see Gopala) 

Kambhojas 142 

Kamalakara 21, 52, 101, 112, 

113, 130, 180, 188 
K am an dak a 5, 14 ; 

on Rajamafldala 14 ; 15, 16 
omissions of, explained 17 ; 

56, 58, 62, 147, 185 ; 
his Nitisara 85 ; 202, 204 
Kames'a 212, 215 

Kane, P. V. 70, 81, 86, 88, 96, 
98, 101, 125, 129, 150, 
154, 169, 178, 180, 182, 
188, 190, 191, 197, 199, 

200, 203, 204, 205, 207 

Kantaks>odhana 78, 79 

Kapilas 159 

Karka 18, 87 

Karma 25, 34 

Karmacandala 126 

Kartavirya" 34, 105 

Kartikeya 185 

Kas'i 22, 42 

Katyayana 16, 18, 19, 40 

on fallen women 53 ; 78, 83, 

121, 133, 154, 155, 169, 

176, 178, 180, 191, 205, 206 

Katyayana-Srauta-Sutra 119 

Kautilya 5 

on brahman immunities 11 ; 

12, 14, 15, 16, 19, 36 
on nyaya 38 ; 43 

on the care of destitute wo- 
men 50 ; 
divorce permited to non- 
brahman 52; 62, 75, 78, 

83, 84, 85, 101, 112 





on the authority of Nyaya 
113-114; 122, 132, 133, 
134, 139, 141, 143, 149, 
158, 171, 174, 176, 179, 
181, 185, 186, 187, 190, 

192, 201, 202 
(see also Visnugupta) 
of BrahmaQa as a soldier 212 
Kautillya 6, 63 ; 

use of the Kautillya in mo- 
dern politics 68 ; 
Bhattasvamin on 84 ; 86, 92, 

102, 112, 114, 185,201 
Keith, A. B. 125 

Kharag Singh (Maharaja) 189 
Kharavela of Kalinga 197 

King knowledge of Dharma 

essential to 35 ; 

and as duty 108-109 

unhappiness a sign of error 

in governing 35 

no legal power for indepen- 
dent legislation 43-45 
to make good stolen pro- 
perty 44, 209 
union of interest with sub- 
jects 101 
Divine creation of 102 
as the maker of the age 102- 

his power to make law 

repudiated 131-2 

alleged power to make laws 

132-4, 135; 
is under and not above law 


Royal pardon 137-8 

qualification of a 208 

primogeniture 209 

duties of a conqueror 210 

propitiation of unseen pow- 
ers by 211 
de facto King recognised 213 


Kisen Singh 189 

krcchra 38, 119 

Krishna Rao, M. V. 145 

Krishnaswarni Aiyar, T. 72, 180 
Krishnaswami Row. K. De- 
wan Bahadur the foun- 
dation 1 
his career 3, 4 
Kr^amrga 48 
KrsnaYadava c 198 
Krtyakalpataru its various 

parts 27-28 ; 41, 57, 70 
its missing parts discovered 
95 ; 96, 100, 129, 143, 148, 
152, 155,200,203,210,211 
Krtya-ratnakara 204 

Kulluka 72, 78, 120, 129, 153, 

157, 171,213 

Kulottunga I 58 

Kumarapala 15, 202 

Kumanla 19, 30, 40, 112,125, 

126, 127, 177 
Kumbhi Plates of Vijaya- 

simha 143 

Kunti 184 

Kus'a 48 

Kuta-yuddha 59, 204, 208 

Laghu-arhan-niti 202 

Lak$ana 26 

Laksaqapraka&a 95 

Laksmanasena 211 

Lakmidhara 8, 15, 27, 29, 41 

57, 58, 60, 61 ; 
content of the Kalpataru 
62-4; 70, 101, 129, 148, 
155, 200, 203, 204, 205, 

(see also Krtyakalpataru) 
Lak$mldhara and the Krtya- 
kalpataru 95, 129, 203, 204 


Law of Nature c/. with 

Dharma 37 

Law municipal, constitution- 
al and secular 24 
public and private 23, 92 
conflict of usage and rule 32 
c u s t o mary classification 
and systematisation of 

38, 114 
differentiation of secular 

and religious 78-79 

vedic basis of Hindu Law 


conflict of law not real 82-83 
adjustment to changing so- 
ciety 109-110 
repudiation of king's power 

to make law 131-2 

alleged power to make law 

king not above but under 

law 134 

alleged change of law by 
As'oka and the Mauryas 

increasing dependence on 

customary law 148-150 
Law and Custom 170 

Legal Remembrancer 100 

Lobha-vija 140-141 

Lokayata 12, 148, 159 

MAC Cunn 214 


MACNAGHTEN, Sir Francis 72 
Macnaughten Sir William 

Hay 9, 72 

Macphail Dr. J. M. 140 

Madanapala 130 

Madanaparijata 129, 181 

Madanaratna-pradlpa 200 
Madanaratna 130 

Madanasimha 41, 130 

Madhava 8, 42, 74, 88, 112, 

198, 199 
Madhavacarya author of Kala- 

nirnaya 10 ; 19, 73-4, 52, 53 ; 
his treatment of Vyavahara 
and Rajadharma 87; 118 
151, 176, 177, 181, 185, 189 
(see also Madhava) 
Madhava Kongani Varma 145 
Madras Epigraphtst's Report 

Madras Law Journal Golden 

Jubilee Volume 95, 203 
Madras University 1 

founding of the chair of 

Indian History 2 

Magas 142 

Mahabahpuram 144 

Mahabharata 24, 48, 80 

Anusas'ana-parva 107 ; 209, 

212, 214 

' Rajadharma parva 101 

S'anti-parva 102, 104, 105, 
107, 135, 146, 164, 174, 
175, 181, 182, 184, 186, 190 
Yaksapras'na 93 

Mahabha$ya 18 

Mahadeva, patron of Hemadri 

129, 198, 199 

Mahajana 24 

Maharaja of Baroda 67 

Mahendra 77 

Mahendravarman 1 44 

Mahismati 105 

Maithila 112 

Maine, Sir Henry 21 

on Indian Dharmas'Sstra 

69, 74, 79, 89 

allegation of priestly in- 
fluence on Hindu Law 

90,92, 110, 168 

Majumdar R. C. 145 

Manasollasa 56, 62, 154, 201, 





, theory of 60, 63 

Mandalik V. N. his transla- 
tion of Yffjnavalkya Stw fti 

88, 195 ; 101 

M&ngavya 154 

Mangaflur grant 144 

Manindracandra Nandi, Maha- 
raja of Cossimbazaar 67 
Manlndra Foundation 

(see Hindu University- 

Mankaliputta, Gosala 77 

MMjuS'rt-malakalpa 183 

Manu usages of heretical as- 
sociations as valid 12 ; 14, 


Asahaya on Manu 18 ; 30 
condemns use of Nyaya 38 ; 

45, 69, 83, 84, 93, 98, 99 
on the authority of Nyaya 
113-114; 126, 132, 136, 
137, 139, 142, 145, 149, 

150, 151, 152, 153 
on the usage of a good s'udra 
155-6 ; 157, 158, 158, 159, 
162, 165, 169, 170, 171, 
172, 173, 175, 177, 181, 
182, 183, 184, 186, 191, 
193, 195, 206, 207, 209, 212 
Manu and Yajnavalkya 79, 
92, 99, 122, 132, 149, 

159, 161, 171, 175, 212 
Manu Co}a 145 

Manusmfti 14, 18, 39, 69, 70, 
72, 75, 77, 78, 79, 80, 81, 
115, 120, 122, 123, 131, 
134, 136, 160, 161, 172, 
174,178, 186,187,205,212 
Marasimha 145 

Maritime activity Indian 49 
Marriage conferred equality 

to women 49 

reduction of the number of 
forms of 50 



indissolubility of 51, 175-176; 
cancellation of divorce etc. 51 
divorce permitted to Non- 

brahman by Kaufilya 52 
reduction in the number of 

valid marriages 169-170 
right of unmarried daughter 
to expenses of marriage 

, 173-4 
marriage an obligation to 

woman 174-5 

gfhasthas'rama 177 

praised 177 

hypergamous unions prohi- 
bited 185 
Maskarin 18, 87 
bhaya of 156 
Mat^visnu 124, 125 
Matsyapurana 147, 182 
Mauryan Polity 79, 140 
Mauryas 44, 45 
Mauryas-as changing the law 

of theft 135-6 

Max Mueller 20, 88, 89 

Mayukhas 41 

(see Nilakantha) 

Mayukha, Vyavahara 9 

Mayura Sarma 144, 198 

Medhatithi 18, 30 

on valid smrtis 38 ; 40, 43 
explains the vedic sanction 
to sahamarana as ana- 
lagous to that of black 
magic 52; 78, 80,84, 111, 

115, 116, 117, 120, 131, 
repudiation of king's power 

to make law 131-132; 153 
on the practice of good men 

155 ; 157, 183, 187, 206, 207 
Meyer J. J. 23, 91, 92 

Mimamsa rules of interpre- 
tation, systematisation of 
13 ; 21, 24, 30, 40, 43 




accepts as authority the 

practice of a good sudra 48 
interpretation of 82 

application of rules of inter- 
pretation toDharmas'astra 
and Arthas'astra 84 

Colebrooke's study of 21, 89- 

90; 95 

hypotheses of 96 

effects of its spread on Bud- 
dhism 125-127; 134, 151, 


rules of interpretation as 
applied to Hindu Law 
texts 150 

Mimamsa-sutra 125, 126 

Miscellaneous Essays 90 

Mitaks.ara 9, 41, 72, 88, 120, 
121, 129, 133, 152, 157, 

195, 203, 204, 206 
Mithila 42 

Mitra Mis'ra 26, 41, 48, 56, 58, 
59,99,112,150,156, 158, 

164, 165, 200 
see also Viramitrodaya 

203, 208, 209, 210 
mleccha 46, 54 

(see Yavana, Vratya) 
Mokfa 29 

Mookerji, Asutosh 121, 140 
Mr.ges'avarma 144 

Mudrarak$as a 186 

Muktyar 121 

Muirhead J. 168 



Nagoji Bha#a 196 

namatides'a 118 

Namdev 168 

Nana Fadnavis 199 

Nfinaghat inscription 165, 198 


Nandas 185 

Nannarija 143 

Nanda Pan^ita 38, 84, 130, 193 
Narada the divine sage 108 
Narada 17, 20, 40, 78, 83, 98, 
114, 132, 133, 169, 171, 

176, 180, 184, 190, 191 
Narada-paris'itfa 191 

Naradasmfti as example of 

civil law 16 ; 20, 70 

conflicts of law not real 82 
Naradlyamanu -sam hits 181 
Naradlyapurana 182 

Narasimha-varman 144 

Narayaija Bhatfa 130 

Narayana 88 

Nasik 22, 42 

Natural Science (see Lakava) 
Natyadarpaqa 183 

Nayanika queen 165, 198 

Nelson J.H. 89 

Netaji Palkar 55 

nibandhas 20, 24 

as the fashion of each court 

41, 42, 56, 84 

by kings 199, 200 

Nilakanfha 31, 58, 59, 98, 113, 

130, 150, 188, 200 
see M a y u k h a s Rajanitt 
ntayiikha 202, 205, 206, 

207, 208 

Nilakantha Sastri 146, 198 

Nirukta 182 

Nirvana 25 

Niti literature 56 

Niti-kalpataru 210 

Nitimarga 145 

Nitimayukha 200, 204-205, 

NitlsZra 14, 84, 85, 145, 146, 

202, 204 

(see also Kamandaka) 
Nitis'astra 93 

NttivakySmfta 15, 202 




Niyoga 38, 52, 112, 150 

gradual disappearance of 184 

Niyogakft 121 

Nfsimhapras ada 130 

Nyaya (logic) 24, 38, 95 

authority of Kaufilya and 

Manuon 113-114; 133, 151 
Nyayakos'a 119 


Oriental Conference Eighth 182 

Orissa 48 




Paindas 142 

Paithan ' 22, 42 

Paithinasi 48, 160, 167, 188 

Pallava 39, 45, 198 

Panas 139 

Pan^ita 42, 143 

PSnflyas 142 

Panini 19 

Paramaras of Malva 40 

Parasfara 53, 73, 74, 83, 151, 

161, 163, 164, 166, 198 
Paravara-madhavlya 164 

Par&s'arasmrti 16 

commentary by Madhava on 
42 ; 70, 72. 73, 176, 177, 

181, 185, 189, 193 
Pftraskara 87 

Paras'urama, killed Karta- 

viyarjuna 106 

paripalanam 45 

Parisad 32, 39, 42, 99-100 

under Rama 108 

substitutes for in dharma- 

vyavastha 131 

Parthasarathi Misf ra 1 1 2 

Pzrtition-uddharavibhaga 182-3 
Pasan<Jas 12, 78, 159 

Pas^upatas 159 

pataka 75 


Pataliputra 138 

patria potestas 50, 170 

peculium castrense 168 

Peddibhatfa 129 

Pitfdayita 211 

Political Philosophy of Burke, 


Pollux 199 

Pollock 69, 74, 109, 168 

Position of Women in Hindu 

Civilisation 165, 169, 171 
Pracchanna 80 

Pracetas 116 

Pradvivaka 57, 143 

Prajapati 153 

Prataparudradeva of Orissa 99 
Pratiloma, usages of castes 48 
Pratinidhi 38,118-121,215-216 
Prati$thasagara 1 99 

Pravarasena II 122, 198 

Prayascitta 11, 16, 23, 38 

of mlecchas 112, 194 195, 200 
Prayogaratna 1 30 

Present Administration of 

Hindu Law 72 

Princes, education of 148 

Private law 23 

Privy < Council -Judicial com- 
mittee of 9 
Property, alienation by widow 
for pious purposes 51-52, 

178, 180 

Ptolemy 142 

Public law 23 

Pulakes'm I 198 

Punishment-mixture of spiri- 
tual and secular 74-75 
Punjab 48 
Punya 25 
Puraflas, thrown open to 
women and sudras-as fifth 
and sixth categories of the 
vedas 11 ; 26, 30, 31, 39, 
62, 95, 157, 181, 182 




Purification, reduction of the 

rules of 166-167 

Purodha 42 

Purohita 142 see also purodha 
Pusyabhuti 186 

Pusyamitra 39, 106, 197, 188, 

Put 170 


126, 127-8 

Raghavan, Dr. V. 183 

Raghunandana, 8, tattvas of 

70 ; 130 

Raghuvams'a 85, 105, 146 

Rajadharma 4 

called Rajaniti 7 

Dharmas'astra as Raja- 
dharma 32 ; 55, 57, 58, 


scope of 68 ; 70, 74, 140, 200 
works by court Pandits 
as 203-204 

Rajadharma-Kalpataru 62-4, 

142,200,205,210, 211, 
Rajadharma-Kamadhenu 200 
Rajadharma-Kaustubha of 
Anantadeva 57, 59, 200, 

203, 208 
Rajadharma-P raka&a 57, 

200, 208 

Rajadhiraja 198 

Rajamahendra-Rajakesan 145 
Rajaniti preference given to 
heretics etc., in an audi- 
ence with the king 12 
subjects for the study of a 

prince 12; 24, 56, 70; 

differences with Dharma 
s'astra and Arthas'astra 

92-93 ; 200 
Rajaniti of Bhoja 200 

Rajaniti-mayukha of Nila- 

kanjha 57, 58 

Rajanlti-ratnakara 57, 108, 

200, 204, 210, 213, 215 
Rajas' asana 43, 132, 133 

Rajasuya 166, 196, 197 

Rajendra II 146 

Rajatarangini 188 

Rajya S'n 187 

Raksasa 50 

Rama an ideal ruler 34 

as the restorer of the Golden 

Age 106 

Ramachandra Dikshitar, V. R. 

79, 140 

Ramanuja 18, 127 

Ramarajya 105 

Ramayana 105, 108, 109, 

146, 165 
Raijbir Singh Maharaja of 

Kashmir and Jammu 88 
Rangaswami 114, 115, 116, 

120, 121, 142, 171 
Ranjit Singh, Maharaja 71, 189 
Rapson 86, 115, 124 

Rastraktitas and their Times 

Ratnakara 200 

(see Candesvara) 
Real-pohtik ' 24 

Reflections on the French 

Revolution 213-214 

Religions of India 175 

Representation, Doctrine of 

118, 121 

Rgveda 182 

Rhys Davids Dr.-T.W. 86 

Rome 169 

Roman law 50 

Rock Edict XIII 141 

Royal pardon (see king) 
R.tam 25 

Rudradaman 106 

Rudrasena I 133 




S'ABARA 19, 21, 30, 84, 90, 

111, 112, 177 

Sabhya 91, 98, 99 

Sachau, E. 193 

Sad ha fan a Dharma 43 

Sahamarana 52 

instances of 53, 112 

(see Sati) 

Saints Vaisnava and S'aiva 50 
Samana mahamatas 143 

Samarangana-sutra 201 

Samayacara 151 

Sambhaji 197 

ETaihbhBka 108 

raised to Heaven 109 

Samiti 99 

Samkalpa 47 

Sathnyasa by non-brahmins 

37, 51 

Samsara 25, 34 

Samgraha 84 

Samskara 11, 31, 49, 200 

Samskaraprakasa 165 

Sariikhya " 12, 148 

Samstha 113 

Samudragupta 39, 85 

relation to an outcaste clan 

123, 198 

Sandal, M. N, 216 

Sane K. N. 197 

Sangha-Buddhist 12, 17 

S'ankara 18, 40, 77 

Influence in the disappear- 
ance of Buddhism 127, 128 
S'ankarabhatfa 21, 130 

Sankararama S'astri 79, 84, 

110, 150, 151 
S'atikararya commentary on 

KSmandaka's NltisZra 84, 85 

commentary on Harqacarita 


S'ankha-Likhita 16, 48 100, 

142, 160 

Saptanga 197 

Sarabhoji, Maharaja 88 

Sarasvatl-vilasa 199 

Sarkar B. K. 23, 24, 85, 92, 

93, 104, 202, 204, 205 
Sarkar, K. L. 150 

Sarvajfia Nftrayana 155 

Sarvoru barman Tnved; 72, 88 
S'atakarni 1 165, 198 

S'atakarnis 39 

Satapatha- Brahtnana 120, 

139, 190 

S'atatapa 176 

S'atavahanas 14 

Sati (see Sahamaraqa) 52, 186-9 
Satraps of the Dakhan 45 

attrimsanmata 127, 152, 159 
S'aunaka 76 

Saury a-dhanam 169 

Scientific Study of Hindu 

Law (Nelson) 89 

Scythian 39 

Shadilal, the Hon'ble Sir 9 

Shama Sastri R, Maha- 

mahopadhyaya 76, 91, 192 
Srigondekar, G. K. 202 

Simhavarman 144, 182 

Sindh 48 

Si&acara 47, 151 

supersession by sadhu- 

namacara 156-8 

Sita 165 

Siva-cchatra patice caritra 197 

S'ivaji 55, 59 

his expiation and coronation 

195-196 ; 197, 199 
S'ivaskandavarman 143, 198 
Skandapurana 119 

Smith, V. A.', 77, 137, 139, 

140, 198, 203 

Smrti 14, 15, 16, 17, 23, 28, 





limitless in extent 31 

drst&rtha and adr$tartha 


authority of a smrti depends 
on its merits 38, 116 ; 39, 

40, 46, 50, 62, 74, 75, 82 
lost smrtis 41 

distance between smrtis 
and^ommentaries on them 

represent literature of magic 

92; 112 

smrtis endless and recogni- 
tion of a modern smrti 

116-118; 151,207 
Smrticandrika 28, 51, 96, 
"153, 157, 173, 180, 187, 

200, 207 

Sntrtikaustubha 130 

Smrtimukta-phala 28, 96 

(see also Vaidyanatha 

Smrtinam Samuccaya 192 

Smrtisara 129 

Smrtisarasamgraha 40 

Smrtisara-samuccaya 88 

Swrtiviveka 40 

Smrtyantara 31 

Somadeva 5, 15, 17, 56, 102, 

Some Aspects of Ancient 

Indian Culture 196 

SomesVara 5, 56, 154, 201 

Sraddha 200 

Srauta 20 

Sreni 149 

S'ridatta 129 

Srlkara 213 

S'rikr$na, author of Daya- 

kramasamgraha 9 

. Srotriya ' 29, 156 

Sruti 14, 62, 80, 112, 149 

Steele 149 



Sthanes'vara 186 

Strange Sir T. 9, 72 

Strtdana 81, 178, 200 

Subrahrnanya Aiyar, Dr. S., 

Foundation ^ 

Subodhini e 129 

Sucet Singh 189 

Suddhi 11, 166 

S'udra usage of a good S'udra 

48, 155-6 ; 
animus against the learned 

48, 158-159; 
condemnation of mendicancy 

and celibacy of a 122 

relaxation of duties to 164 
S'udraka 187 

Sudrakamalakara 180 

S'ukra 6, 82, 133 

Sukranlti 42, 56, 76, 79, 102, 

104, 107, 131, 143 
S'ulapanj 130, 158 

tfunas's'epa 170 

S'ungas 14, 39 

Sutherland, J.C. 72 

Sutra style and purpose 17, 

18, 19 
Suttas (Buddhist) 17 

TAGORE Law Professorship 


Taksas'ila 124 

Taittinya-Brahmana 174 

tandula 119 

Tarkalankara, S'rl Krena 72 
Tagore P. C. " 72 

Taxes, as king's wages 35, 107 
tirtha 48, 201 

Tod 189 

Todarananda 95, 154 

To^ar Mai 26, 130 

see also Dhanna Saukhya 




Ttiratna Buddhist 
Tuppei^ Sir C.L., 



17, 86 



UCCHISTA Ga^apati 168 

Udayendiram grant 199 

Uddalakavrata 195, 196 

University of Bombay, 

see Bombay University 
University of Calcutta, 

see Calcutta University 
University of Madras, 

see Madras University 
Upanayana 31 

non-investiture a privilege 49 
for Vratyas 54 

for women 165-166; 174, 

195, 196 

Upapurana 31 

Utfanas 82 

Utsanna 80 

Uttanur plates 145 


Vacaspati Mis'ra 





41, 72, 130 

14, 39, 198 


Vaisnavism and S'aivism 168 

Vaivasvata Manu 145 

Vajasaneyi-Brahmana 120 

VajracchedikS 158 

Vaman Sastri Islampurkar 181 

Vanga 160 

VaradarSja 72, 88, 121 


Varahamihira 58, 85, 204 

Vardhamana 130 

Varnas readmission into 37 
V arqas'rama-dharma 48 

Varta 148 

vartika 18 

Vasiska 39, 198 

Vasisjha 16, 18, 52, 53, 54, 
86, 126, 149, 156, 157, 
160, 169, 170, 174, 178, 
184, 190, 191, 192, 196, 207 
Vastu Sastra 201 

Vasudeva 124 

Vatsyayana 187 

Veda the bed-rock of Hindu 

religion 30 ; 

smrti must agree with 30 ; 
self-evident and authoritative 


Vedangas 95 

Vedanta Des'ika 106 

Vedanta-sutras 77 

Vedic Bases of Hindu Law by 

P. V. Kane 81 

vidhi 80, 81 

Vidyadhanam 169 

View of Hindu Law (Nelson) 89 
Vijayanagara 42, 189 

Vijayasimha 143 

Vijfianabhiksu 128 

Vijfianes'vara 8, 15, 26, 53, 57, 
78, 83, 84, 95, 112, 129, 
150, 152, 157, 192, 194, 

203, 206, 207 
Vifftanes'vara and Laksml- 

dhara 95, 129 

Vikalpa 43, 47, 81-82 

Vikramaditya VI 58, 202 

Village Communities 89 

Vinaya-sthiti-sthapaka 100, 143 
Viramitrodaya 26, 28, 95, 97, 
99, 115, 150, 152, 154, 

160, 161, 173, 191, 206 
Visftkhadatta 183 




Visnu as both king and sub- 

" ject 35, 108 

Vi$u 16, 18 20, 178 

commends Sati 52; 115 

Vinugopavannan 144 

Visflugupta 19, 85 

Viwupurana 46, 76, 95, 106, 

127, 158, 159 
Vtwu-smrti 70, 75, 138, 139, 

9 153, 184, 187 

VisTvarupa 18, 40, 80, 84, 153, 

Vis'ves'varabhatta 41, 129, 196 

see also Gaga Bhatta 
VtvadabhaAgarqava 88 

Vivadacintamaiii 72 

Vivadaryavabhanjana 71 

Vivadaratnakara 1 39 

Vivadarqavasetu 71, 72, 78 
Vivadasararqava 72, 88 

Voyages to prohibited areas 


Vratyapr&yas'cittamniaya 196 
Vratya-p raya&citt a-Sam 

graha 196 

Vratyas 54 

treatment of 195-196 

a civilised community 54, 55 

Vratyastoma 54, 196-197 

Vrtti of Katyayana 19 

Vyasa 16, 153, 169, 188, 191 

Vyavahara 7 8, 23, 68, 70, 

74,92, 113, 132, 133,200 
Vyavaharamatrka 10, 70, 73, 


Vyavahara mayukha 51 

translation by Borradaile 72 
on adoption 98 ; 101, 169, 

180, 191, 203, 204, 207 
Vyavaharanirqaya 72, 88, 


Vyavaharadarpana 19 

Vyavastha 32 

Vyutpattivada 118 



tings, Warren 

Weber, A, 5 

Wife has a claim to a moiety 

of husband's puny a 51, 171 
Brhaspati on the rights of a 


Wilson, H. H., 9 

Women care of the destitute 

50, 171 ; 

work -houses for rehabilita- 
tion of fallen women 53 
safeguards against offences 

against 53 

abduction a grave crime 53 
treatment of fallen women 

under Mu sal man rule 54 
relaxation of duties for 164 
upanyana for 165-166 

status of (general) 171 

wife's share in the merit 

(puny a) of the husband 171 
Brhaspati on the rights of a 

'wife 172-173; 

right of unmarried daughter 
to expenses of marriage 

marriage an obligation to 


sex equality alleged Bud- 
dhist influence on 175 
marriage indissoluble 175-6 
treatment of outraged and 

abducted women 189-192 ; 
on independent right to per- 
form sacrifice 216 
Wynch, P. M. 72 

YADAVAS of Devagiri 40 

38, 1 74 



Yajnasvamin's commentary 

on Vasisfha 18, 86 

Yajfivalkya recognises cus- 
toms of heretics 12, 78 ; 
non-inclusion of Yaflla- 
valkya-smrtt in the S.B.E. 
series 88-89 ; 

16, 18, 19, 20, 30, 40, 41, 
70, 76, 79, 80, 81, 82, 

83, 84, 93 

95, 98, 113, 132, 133, 
150, 151, 152, 153, 155, 
158, 161, 162, 167, 169, 
171, 173, 174, 184, 190, 

192, 195, 198, 206 
Yama 16, 116, 165, 174, 176, 
180, 195 


Yama and Yami 182 

Yamunacarya 127 

Yas'obhita Madhyamaraja 198 
Yavana see Vratya, mleccha 
Yavanas 142 

Yoga 12, 148 

Yuga 38, 163, 182 

Yugadharuia 38, 49 ; 

relaxation of 163, 164 

Yukti $7, 153-4 

Yuktikalpataru of Bhoja 56, 




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27. RAJA DHARMA (Dewan Bahadur K. Knshnaswami Rao Lectures, 

1938, University of Madras) by Rao Bahadur K. V. Rangaswami 
Aiyangar, M.A., 1941 

28. VARIVASYARAHASYAM of Bhasuranandanatha (2nd Edition) by 

Pandit S. Subramanya Sastn, F.T.S. (with English Translation), 

* Published under the auspices of the Adyar Library Association* 

Rs A 

K V Rangaswami Aiyangar, M A , and A N. Krishna 
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Library, 1941 

30 SANGiTARATNAKARA With the Commentaries of Catura Kalli- 
natha and Simhabhupala Edited by Pandit S. Subrahmanya 
Sastn, F T.S , Vol I, 1941 


Adyar Library Bulletin, October, 1939). Edited by K Madhava 
Krishna Sarma, M O L ... 3 

THE RAJAMRGANKA OF BHOJA (Reprinted from the Adyar Library 
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1. AS'VALAYANAGRHYA-SOTRA With Devasvami Bhfis,ya Edited by Swami 
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2 ASVALAYANAGRHYA-SOTRA (Bhaya of DevasvSmi) Translated into Eng- 

lish by A N. Krishna Aiyangar, M.A , L T., Jt. Editor, Brahma- 
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3 JIVANANDANAM OF ANANDARAYAMAKHI with a Commentary by Vaidya- 

ratna M Duraiswami Aiyangar. Edited by Vaidyaratna G. Snnivasa 
Murti, BA.BL.MB &C.M and Vaidyaratna Pandit M Durai- 
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Sastn, F T S and Dr. C Kunhan Raja, M A , D. Phil. (Oxon.). 
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